1st October 2014

Do Shoot the Messenger

Politicians like to propose legislation which is intended to “send a message.” Such legislation is sometimes well-intentioned, and sometimes merely designed to generate a few approving headlines, but the rhetoric is always the same. The bill, when passed, will “send a message” that such-and-such a thing had better stop.

The snag is that such proposals are often a reaction to an urban myth or the latest media obsession. Evidence for the existence of the problem the bill is meant to deal with tends to be anecdotal, and indeed there may be no clear idea of what the problem actually might be. Such snags are rarely apparent during the bills’ salad days, when all that matters is an impressive speech in the House, but as they move into committee stage, the difficulties become increasingly apparent. What exactly is the definition of the problem the bill is dealing with? How does it arise? Can it effectively be stopped by legislation, and if so, how? What would be the effect of bringing in certain measures? Would they have unfortunate side-effects, and what are the exceptions? And so forth. Many such bills are quietly strangled at this stage, whilst others eventually limp onto the statute book as pale shadows of their original selves. Most tend to be of dubious utility, and are quickly forgotten.

One, however, became positively notorious. This was the much-discussed “section 28” (in Scotland technically section 2A to the Local Government Act 1986). It had its origin in the usual scare story. In 1983 a children’s book called Jenny Lives With Eric & Martin was reported by the tabloid press as having been found in the library of a London school, and was supposed to be in wide circulation. It later proved hard to find anyone who had actually seen the book, but the government of the day was thrown into a frenzy, and declared that legislation was needed.

Looking at the section now, its language seems to come from another age, and it is hard to believe that it was, in a way, the law until only fourteen years ago. It was confusingly amended and tinkered with during its progress through Parliament, but was eventually enacted stating that a local authority “shall not intentionally promote homosexuality or publish material with the intention of promoting homosexuality”, or “promote the teaching in any maintained school of the acceptability of homosexuality as a pretended family relationship”. In all the years of its existence no prosecution was ever brought since nobody could work out what the tortuous words meant with enough precision to frame a charge, but the drift, or message, was clear enough. Until its repeal in 2000, local councils routinely censored themselves, quashing ideas for outreach schemes, education plans, and AIDS initiatives, for fear of consequences under the section.

More recently, around 2006 the last government began to listen to stories in the press about the so-called compensation culture, which in particular was supposed to be stopping schools from taking their students away on trips or adventure projects. A clear message was thought to be called for, and the eventual result was the Compensation Act 2006, which states that if anybody is being sued for damages following an accident, and the claimant is pleading that certain steps ought to have been taken which would have prevented the accident, the court may consider whether such steps, had they been performed, would prevent some desirable or socially useful activity.

That may sound pretty innocuous. The problem is simply that the principal it expresses was already the law. No court would have found a school liable for injuries to a student on a school trip on the grounds that they failed to take every conceivable precaution, but only if they failed to take reasonable precautions. What was reasonable would depend on all the circumstances, and one of those circumstances would be the desirability of the activity. Consequently the Act made no difference to the law, and has had little effect on the lives of ordinary citizens. It has seldom been referred to in court, and its only point seems to have been the opportunity it afforded Ministers to make speeches about “ambulance-chasing lawyers”, a problem which, if it existed at all, was hardly going to be solved by an Act which left the law in the same state as before.

However, the enthusiasm for message-sending legislation continues unabated. Going through Parliament just now is the thrillingly titled Social Action, Responsibility, and Heroism Bill, already known as SARAH. Just five sections long, it states that in actions of damages for negligence or breach of statutory duty, the court must “have regard to”:

• whether the person being sued was acting for the benefit of society

• whether the person demonstrated a generally responsible approach towards protecting the safety or interests of others.

• whether the person was acting heroically by intervening in an emergency to assist an individual in danger and without regard to the person’s own safety or other interests.

This is going over the same ground as the Compensation Act, and one is bound to ask what, if anything, SARAH is meant to add. The same objections apply to it – the motives and reasons a person may have for failing to take precautions which would have prevented an accident can already be considered by the courts as part of the whole circumstances of the case.

But with SARAH, there is in its more extreme wording a danger which was not present in the Compensation Act. This lies in the “message” it is intended to send. Will employers now feel they can breach basic Health and Safety standards, and expect to be excused on the grounds that they are generally nice people doing their best? Will self-appointed vigilantes drive at reckless speeds through cities in pursuit of criminals, expecting to get away with it on the grounds that they are “heroes”, acting without regard to their own safety (and that of everybody else)? SARAH may never become law, and if it does it will not apply to Scotland, but this message may cross borders, increasing rather than reducing the number of claims for damages.

Richard Godden 
Partner – Dispute Resolution

 

 

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