No time is a good time for SARAH

sarah0

The ludicrous SARAH Bill received Royal Assent last week.

I’m struggling to imagine a better social action than firing Chris Grayling strapped to a rocket, into the North Sea. Perhaps Section 2 of the Act would consider any actions favourably.

2. Social action


‘The court must have regard to whether the alleged negligence or breach of statutory duty occurred when the person was acting for the benefit of society or any of its members.’


I didn’t ignore the ‘SARAH Bill’. It seemed more inert than certain other Bills of irritation – Indeed it seemed utterly pointless.  It seems, too, that I wasn’t alone in dismissing SARAH.

“so anodyne and pointless that the only appropriate response is a shrug of the shoulders or the raising of an eyebrow” – David Pannick QC

sarah3

What I did sideline was the possibility of this pointless political priapism either being passed in the first place or widening its reach and malingering into something more sinister, more damaging.

Why would it?  Why pass it?  Key concerns have included the scope of its effect and potential interpretation.  Would it be relied upon by the MoD? who would be targeted by this potential creeping mini-assault on access to justice? is it to minimise costs of incompetence in charge of public bodies and organisations failing in health and safety matters? would it be used in all cases where an injury is sustained as a result of negligence but judicially or socially acceptable negligence? what of the inequalities in acceptability? are there any? is this a legislative means to nudge the public, control the populus? what limits it? why does it exist?

What kind of a message does it seek to send?  go forth lad, tracheotomise thy inebriated friend?

Having spent countless hours securing C-spines with pre-hospital care, St John Ambulance and teaching first aid in schools and colleges … the very best potential intention jars somewhat with the need to control the scene. A, B, C, Danger.

Ketamine for Grayling.

sarah1

sarah2

Any the wiser?

Why does it exist? Why should we allow legislation that was never necessary in the first place?   A legislative fix for a problem that doesn’t exist seems awfully bureaucracy-heavy and plain silly.

Lord Lloyd ‘s move to stop a second reading fell on deaf earssarahpng

as did his comments in the Lords.

“In truth the Bill is unamendable. That was the view taken by the Law Society, and it was right. The Bill is so defective in all three operative clauses that the only feasible amendment is to take each of the three clauses in turn and remove it from the Bill, one by one.”

“The Lord Chancellor has said over and over again that the purpose of the Bill is to send out signals – signals to the judges and signals to the public. I will say no more about sending out signals to the judges. What about signals to the public? If, as we are told, the intention is, for example, to increase the number of volunteers, or to reduce the number of spurious claims, surely the way to do that is for Ministers to appear on television and write to the papers.

…does it not follow that the Bill is a misuse by the Government of the legislative process? I say it again – I and many others have said it many times – that the purpose of legislation is to make law that can be enforced in the courts.  It is not to send out Government messages, however well intentioned.”

“This Bill is indeed exceptional. Not because it is of any importance but because it is of no importance at all. It is useless.”Lord Lloyd of Berwick

Now, while it’s both irritating and alarming that inert piffle can pass as law without much ado in this country, perhaps I can live with that.  But why is the government legislating unnecessarily, with no mandate at all, no legitimate purpose? an infringement on the rule of law, on separation of powers if intended to coerce judicial decisions and interpretation of existing statute in a particular way?   Worse still, how do we know this is as suspected, a culture-speak, a foolproof non-entity? a meritless, vote-aiming ploy? creating a nation of heroes sure sounds like a voter-aimed ploy – but what in the above text really ensures its impotence?    all of it, you say?

Section 1 of the Compensation Act 2006 adequately covers what this intends to, if that was even required.

1. Deterrent effect of potential liability
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—

  1. prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way, or

  2. discourage persons from undertaking functions in connection with a desirable activity.

What effects will SARAH have on workplace injuries, for example? Grayling earlier vowed ‘to slay health and safety culture’ and  last week hailed  ‘a balance to counter the health and safety culture’ to provide reassurance to employers. He elaborated on businesses being ‘stifled by unnecessary insurance costs and the fear of being sued’.  Generally insurance is a good thing surely?  Is ‘the health and safety culture’ so terrible it requires a legislative snip? is this purposeful propagation of mythology?

Was SARAH constructed to move beyond personal injury?  what does  a ‘predominantly responsible way’ even mean?

Nigel Poole QC discusses concerns on his blog  in relation to SARAH being dragged into clinical negligence litigation: The SARAH Act 2015 – Similar Fact Evidence and Disclosure.    Clearly the text of the Act does not delineate when it will apply. Clearly if it can be used to the advantage of one party in litigation then lawyers would be somewhat bound to engaging with it.  Using the case of Laughton v Shalaby as an example Nigel Poole discusses the problems that may arise in future cases in relation to the evidential burdens and scope of disclosure required under SARAH.

Would a Court have to have regard to predominantly responsible approaches in all cases? The unlimited, ill-considered effects of the Act in practice would surely make litigation more lengthy, cumbersome and expensive and clog up the Courts unnecessarily. What of those harmed by true negligence? Would they be scuppered by the general vague gist of previous actions or vague idea of a vague aim of vaguely something good? Indeed, in the 2006 Act the judges ‘may’ take certain things into account. Under SARAH the word used is ‘must‘.

 

“Are they to say, in every negligence case, “I have had regard to this Bill”, so that people realise they are complying?” -Lord Lloyd

 

pannick1

The government should not legislate to send a message to the public through legislation; they should not legislate to correct false perceptions or misunderstandings- for education, infomercials, leafleting GP surgeries or their nearest Sainsbury’s would all prove more effective.  Why and how did the Commons and Lords allow this Frankenstein to get so far as it did?  Something’s very wrong in Parliament.  There is no doubt that this seems an anodyne, bafflingly pointless creature; but doubt remains over whether its effects will indeed creep in more than I’d dismissively believed.   Like spilt yoghurt on silk gowns.   Well, SARAH was Grayling’s creation.

pannick2

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s