Fraser Whitehead gave evidence.

Before calling the first Member to ask a question, I remind Members that questions should be limited to matters within the scope of the Bill and that we must stick to the timings in the programme motion agreed by the Committee. For this session, we have until 12.30 pm only. Will the witness please introduce himself for the record?

Fraser Whitehead: I am Fraser Whitehead, representing the Law Society of England and Wales.

Q 1

I do not know whether Mr Whitehead wants to make any sort of opening statement, but perhaps I can encourage him to do so by asking a general question. I have heard or read various views on the Bill that can be summarised into three groups. First, it does nothing. A senior QC wrote:

“The Lord Chancellor is proposing an Act of Parliament which is not intended to change the law… If this bill is enacted I do not believe it will make a jot of difference to the way the courts determine cases involving negligence or breach of statutory duty.”

Secondly, it is confusing because it sends out signals, or sets up potential processes, which—while not adding much—are bureaucratic and add other layers of decision making, even if they will not alter the decision. Thirdly, it is pernicious in some ways, because it is seeking, however clumsily, either to restrict meritorious claims being brought—to put them off—or to give bogus defences to those claims. Which of those views best fits the Law Society’s view? Or do you have a fourth view?

Fraser Whitehead: The Law Society’s position is that it is an unnecessary Bill, but you have to follow through what the consequences would be of bringing in a piece of legislation that, on the face of it, appeared to be unnecessary within the law as it presently stands. I have to explain to you briefly; forgive me if it is a simple guide to the law as it presently is. I think—it is a personal view—that, notwithstanding the fact that it may be without valuable purpose, there is validity in the anxiety of those who say it has the potential to be used, and there is probability that it would be used, in a way which was probably contrary to the expectations of those who propose it.

In a sense, it is a plausible Bill. The very title of the Bill shows you the objective and the sincerity behind it. The problem is, when you put what is proposed in its brief statutory form into what is already a fairly complex area of law, the consequences are potentially quite  serious. I think it is a possibility—I put it no higher than that, because I show respect to the drafters—that they have not fully appreciated the full range of the extent of this and how far it goes beyond those areas where politicians and others have expressed anxiety about social responsibility issues.

The purpose of the law of statutory duty and negligence is primarily a deterrent. It creates responsibilities of two different types. One is the common law right, an ancient tradition of the law of England and Wales, where there is fluidity and discretion built into the law to enable it to develop and evolve as society itself develops and evolves. The other is the legislative provision—Parliament-made law—which is the statutory duty, which has the same effect. It creates duties and responsibilities, but does so in a way that is rigid and without discretion, and it does that because parliamentarians have perceived that these are areas of sufficient importance that, within the framework of deterrents in which the two duties coexist, the areas that these particularly statutory duties attack are simply too important to be left to fluidity and discretion, because the consequences of breaches of them are more serious.

It is important to understand that this framework of statutory duty and negligence in the law of England and Wales goes way beyond some of the areas that people might identify with—particularly the world of personal injury—and includes, for example, the statutory duty owed by company directors in respect of their company and in relation to the position of creditors; the statutory duties involving governors in relation to children with special needs and dealing with complaints from parents and teachers; the statutory duties of local authorities in relation to disturbance of businesses when they are conducting digging works at night; the statutory duties of occupiers in relation to their premises; the statutory duties of landlords in relation to the condition of property; and many others, such as those of utility companies in respect of competitive prices. These are statutory duties where there is a duty of care and all of these will be touched on by this Bill.

Q 2

You say in your comments in our brief that you think that the Bill is poorly drafted. Could you say a little bit more about that?

Fraser Whitehead: It is poorly drafted. It will have massive unintended consequences, and the potential for it to be used in a way that was not intended by those who drafted it is significant. I would like to think that one could amend it, but part of the problem is that it is in an unusual form for a Bill that deals with fundamental law, in that it is laudably succinct. I generally support the use of plain English and shortness in legislation, which has become immensely complicated, but the Bill is far too short and its consequences have not been thought through.

The Bill is probably unamendable; at least it would not be recognisable as the Bill it presently is if it were amended to take into account all the changes that need to be made. I say that as a lawyer whose present area of practice is business and specialist litigation. I am one of the lawyers currently dealing with the litigation against banks involving interest rate swaps, where the primary cause of action of the victims—the small businesses that have been affected—is either statutory duties imposed by the regulator or the law of negligent misrepresentation. The idea of the banks running a defence that they are engaged in social activity or acting in the interest of  society in the context of that litigation is horrific, but I cannot imagine the banks’ lawyers giving up the opportunity to run that kind of argument.

Q 3

Could you be specific about each of the three operative clauses—2, 3 and 4? How does Clause 2, which essentially pertains to volunteering, differ from section 1 of the Compensation Act 2006, and does it achieve its purpose of encouraging volunteering? Will clause 3, which has attracted the most attention, have any harmful or beneficial effects on the relationship between employers and employees? What do you think the effect of clause 4 will be on people who intervene in emergency situations? Clause 4 is the worst drafted of all the clauses, and it seems unclear, for both the emergency services and volunteer interveners, where the balance of risk will be displaced to.

Fraser Whitehead: I will happily look at those clauses and try to give some examples. I will start in reverse order, because clause 4 is in some ways the easiest. Based on comments made by politicians, the object of clause 4 is the clearest.

It is important to remember that common law is fluid—I use that expression carefully—because duties owed by different classes of people in similar situations are different. One of the simplest and most often quoted examples is the difference between a solicitor who advises a client about their legal rights and fails to warn them of limitation issues, and a trade union official who warns a member about their legal rights and fails to advise them about certain matters. The duty of care owed by a reasonably competent solicitor and a reasonably competent trade union official are different. In every situation, the court analyses the surrounding circumstances to see how the basic principle of the duty of care fits into the surrounding circumstances.

In a situation of heroism, something that would normally be considered by the court in the overall circumstances is whether there was an opportunity to reflect, in the same way that an employer, in respect of a breach of duty, is required to carry out risk assessments and would be given a reasonable period of time to react to a risk assessment before being held to be culpable for failing to implement it. The period of a heroic reaction would be judged much more shortly, so it would be a less influential thing.

What most troubles me about clause 4 is why the word “heroism” is used at all. When it states,

“when 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”,

why has the word “heroically” been added? Why does it not simply say,

“when the person was acting…by intervening in an emergency to assist an individual in danger and without regard to the person’s own safety”?

What does the word “heroically” add? You will know that the view of the principles of interpretation is that, if words are inserted by parliamentarians, they are there for a reason. I have struggled with this.

Unlike clauses 2 and 3, it is very clear in clause 4 that we are talking about the negligent act of an individual rather than a person in law, which includes corporations, companies and partnerships. Disregard to your own safety is primarily a personal responsibility. This must be talking about a person. It is worth remembering—I think this is sometimes lost by other commentators—that  the Bill applies when a court is considering a claim that a person was negligent. The person we are talking about is the wrongdoer, so clause 4 is looking at the wrongdoer who has acted heroically. You have to assume that something has gone wrong in the act of heroism—they have done something that has caused an injury or broken a statutory duty—and I cannot work out when that will apply. You could come up with some odd situations; for example, where someone sees a child in difficulty and bursts through a barrier, destroying it, and is sued by the local authority for damage to its property. That would be a ridiculous one, but it is an example. You would see the local authority arguing, “We don’t think he was acting heroically because the child wasn’t really in difficulty. It was 11 o’clock at night and goodness knows what had been going on before that.” That is a farcical example but it helps to illustrate the issue with what this word “heroism” actually means.

More troubling in that paragraph are the last three words: “or other interests”. The person is acting “without regard” and these words are conjunctive; the law normally regards words in legislation as conjunctive, so that they are a chain and each one of them has its place. They either have to be without regard to their own safety or to their other interests. That throws it to the imagination of the legal profession, to be honest, to come up with what someone’s other interests might be, particularly when it is a defence mechanism. This is essentially about the way a person who has injured someone can avoid their responsibility by relying on their “other interests”. The little bit in the middle—

“intervening in an emergency to assist an individual in danger”—

is fine, but the law already covers that. There is no doubt about it.

Clause 3, which is about responsibility, talks about demonstrating a

“generally responsible approach towards protecting the safety or other interests of others.”

Within our current law, we already have a process of risk assessments. Risk assessments are not actionable per se. There is an obligation on the part of the employer, enforced by the health and safety authorities and local authorities, to ensure that risk assessments are done. I think this is a chain of causation problem. Let me give you a simple example, looking at what we understand to be the general purpose: a teacher decides to take a school party on a hill walk. The teacher is responsible, so they consult the guides and speak to people in the local community. They actually go on the walk themselves the day beforehand, to ensure there are no hidden dangers, and it is a dry day. The next day, the teacher takes the school party up and it starts raining heavily. They come to a path which is very steep and has become muddy. The teacher takes the decision there and then to carry on with the walk, because it is nearly finished, but a child slips and is injured. The local authority, when defending the claim brought by the child’s parents, will say, “This is a teacher who demonstrated a generally responsible approach towards protecting the safety and interests of others.” The teacher clearly did that but, on the spur of the moment, the key decision to go up the muddy path was the wrong decision and a negligent one, because the path was dangerous. Where does that chain of causation begin? There is no apparent link to the direct act at the time, and that is part of the problem with accidents. Accidents tend to happen as a result of a build-up of events.

If we look at clause 2, on social action, you must all know what I am going to say here. This is about whether the event occurred when the person—the tortfeasor or apparent wrongdoer—was acting

“for the benefit of society or any of its members.”

We are talking about whether the Royal Bank of Scotland, for example—a public body in a sense—was acting in the interests of society or the interests of others such as shareholders in marketing interest rate hedging products. It is a perfectly plausible argument in that case. Again, I do not understand why the phrase “interests of others” is there, particularly if you look at it in terms of the relationship between clauses 2 and 3. In clause 3 it is

“safety or other interests of others”.

In clause 2 it is

“benefit of society or any of its members”.

It is not clear that the benefit of society is also the benefit of any of its members. I suspect that is what is intended. I suspect that what is intended is the “benefit of society or the benefit of any of its members” but that is not clear.

Q 4

I was very interested in what you said about words. Obviously words in law are very important. What I am most concerned about is that, as you said in your evidence, the Bill does not affect overarching health and safety law. I wanted to tease out some more what you said about the benefit of society. If you were defending someone and the Bill was on the statute book, how would you interpret “the benefit of society”?

Fraser Whitehead: I would try for the widest possible interpretation. It is a very good question. An interesting way to look at it is to put it the other way round—it is an easier way to illustrate the dilemma. Supposing the provision had said that the judge had to take into account whether the wrongdoer was acting against the interests of society. You can imagine the arguments that would be raised there if there were trespassers or hooligans in a situation that caused an accident. How would the defence lawyers act? They would try to say, “These were just kids on a night out. It is important that young people are generally able to exercise discretion. They have to learn and this is a terrible thing.” How will it work? I just do not understand. The problem I have tried to highlight is, yes, if you give a benevolent approach to the interpretation you can understand what is intended. It is aimed in the same way as the Compensation Act 2006 was, which was about voluntary, charitable activities. In some ways this could be said to be the same, but it appears to go very much further.

Q 5

The intention of the Act is to encourage people to volunteer. The Bill is extremely short and we are talking about wide-ranging social issues which would go back years. Do you think the intention of the Bill is to encourage people to intervene?

Fraser Whitehead: If you are talking about injury compensation, it is a long time since I practised in that area. One of the things that has always troubled me in the methodology, talking about the compensation culture and in the introduction to this legislation, is that as a practising lawyer I never took on or ran a case that I thought would deter people from engaging in voluntary or good activity. Most lawyers would think that that was not the right kind of case to bring. I do not think there is any evidence—I would be happy to be persuaded—  that people have been deterred by court cases from engaging in socially responsible activity. I know there is a fear.

Q 6

What form of consultation have you undertaken to ascertain the views of your members? Was it an online survey or a written survey? Did you have meetings with them?

Fraser Whitehead: My responsibility in the Law Society is to chair the legal affairs and policy board. One of the committees that reports to us is the civil litigation committee. I am a former chair of that committee, and I therefore take an active interest in its affairs. The proposals we put forward in our modest but short contribution, to which I am adding today, have been approved by the chairs of those committees and myself, and they have been discussed by what I would call the key litigation figures in the Law Society. We have not consulted widely on the Bill with our membership as far as I am aware, but I might be corrected on that by someone behind me. I speak from the position of having been a practitioner. I have been practising civil litigation for 40 years as a solicitor, and it is an honestly held belief. I cannot put it higher than that.

Q 7

Are these personal views that are shared by a limited number of colleagues in the Law Society—the other chairs that you mentioned—as opposed to the views of the Majority of the Law Society, whom you admit that you have not consulted?

Fraser Whitehead: The position I am putting forward is the Law Society’s position.

Q 8

I appreciate that you represent the Law Society, but the Law Society has thousands and thousands of members. I want to know how many of those members have been consulted and, if so, by what means. Were they consulted via a survey, for example? You have said that no such survey of those thousands of members has taken place. Having ascertained that element—I appreciate that you have practised in this area for 40 years—am I right in saying that this is your view and the view of one or two other people? You mentioned the chair of one committee or another, but how many people precisely have had an input into the views that you have put forward today? Are they principally your views? If not yours alone, how many other individuals have you spoken to who share your views? Finally, will you kindly tell me the precise number and their names, if possible?

Fraser Whitehead: The Law Society is actually a democratic structure, so the views of the grassroots, if I can use that word, channel up through a series of things, including local law societies, into the committees and the council of the Law Society—

Forgive me for interrupting, Mr Whitehead.

Fraser Whitehead: I am not avoiding the question.

Q 9

As a former solicitor, I am aware of the structure of the Law Society. Basically, you have not consulted your members. You are relying on the views of a small number of people who sit on a specific committee of the Law Society.

Fraser Whitehead: The people on whom I am relying are a wide cross section of specialists.

How many, please?

Fraser Whitehead: The total number is approximately 35.

Q 10

Have 35 people given you their views, either in writing or by speaking to you?

Fraser Whitehead: No, but we have discussed—

Thank you. I am mindful that time is limited, and I am happy to give way to someone else.

Q 11

I understand that your concerns on this are that you see it as an attempt to codify the discretion of the judiciary. I would like to turn that around. Do you believe that the judiciary already have, and use, the discretion implied by this Bill in their work, or do you believe that they are currently constrained from doing so?

Fraser Whitehead: I do not believe they are constrained. I believe that, within the fluidity of the common law, they have sufficient discretion to cover everything in this Bill. My concern is that we will be jammed with litigation challenging the existing precedents.

Q 12

You talked about the judiciary understanding the fluidity of common law and the responsibilities that exist. Do you think that the public understand that? Do you not think that the Bill will go some way towards helping the public understand that Laws exist to protect them if they are acting responsibly?

Fraser Whitehead: That is a very good question. The common law is a mythical thing. It is designed to represent a composite position of society, but it is reflected by the judiciary. It is a valid question whether the judiciary actually reflects that. In the same way that I would have answered the Minister’s question, it is unclear.

That brings us to the end of the time allotted for the Committee to ask questions. On behalf of the Committee, I thank the witness for his evidence.