Legislating Dangerously: Bad Samaritans, Good Society, and the Heroism Act 2015

DOIhttp://doi.org/10.1111/1468-2230.12243
Published date01 January 2017
Date01 January 2017
bs_bs_banner
LEGISLATION
Legislating Dangerously: Bad Samaritans, Good Society,
and the Heroism Act 2015
Rachael Mulheron
The Social Action, Responsibility and Heroism Act 2015 is a troublesome statute. The Act
requires that, when considering a claim brought against a defendant in negligence or for breach
of statutory duty, the court must assess whether that party was ‘acting for the benefit of society
or any of its members’ (section 2), or ‘demonstrated a predominantly responsible approach
towards protectingthe safety or interests of others’ (section 3), or was ‘acting heroically’ (section
4). However laudable the Coalition Government’sattempts to foster a ‘Big Society’ might have
been, this enactment was not the proper vehicle to achieve it. Some provisions merely repeat
longstanding common law principles. Others may have been intended to amend the common
law to encourage ‘good citizenship’, but fall well short of that aim. And some aspects of the
Act’s drafting have the (perhaps unintended) potential to sit uncomfortably with established
common law negligence principles.
INTRODUCTION
Some statutory provisions may be considered unnecessary, in that they do
nothing more than repeat the common law. Some may be unambitious, in that
they may initially have been intended to change the common law, but fall well
short of that. And some may be downright tumultuous in their potential (and
probably unintended) effect in changing the common law. In its mere 20 lines,
manages to achieve all three feats.
The Act came into force on 13 April 2015,2and only applies to a claim
against the defendant (D) for negligence or for breach of statutory duty, where
the relevant act or omission giving rise to the claim occurred after that date.3
At the time of writing, there have been no cases which have either considered
the Act’s application or interpreted its provisions.
In a nutshell, the Act requires that, when considering a claim brought by the
claimant (C) against D in negligence or for breach of statutory duty, the court
must have regard to whether D was: ‘acting for the benefit of society or any
of its members’ (section 2); or ‘demonstrat[ing] a predominantly responsible
approach towards protecting the safety or interests of others’ (section 3); or
Professor, Department of Law, Queen Mary University of London.
1 Royal Assent received 2 Feb 2015.
2 SARAH Act 2015 (Commencement and Transitional Provision) Regulations 2015 (19 March
2015), reg 2.
3ibid, reg 3, ‘Transitional provisions’.
C2017 The Author. The Modern Law Review C2017 The Modern Law Review Limited. (2017)80(1) MLR 88–109
Published by John Wiley& Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
Rachael Mulheron
‘acting heroically’ (section 4). The government itself admitted that the aim of
the majority of the Act’s provisions (sections 2 and 4) was not to amend the
law, but to educate and to pacify the general public, albeit that the remaining
operative section of the Act (section 3) was not likely to be quite so benign.4
The Impact Assessment of the Bill stated that its aim was to ‘provide reassurance
that if something goes wrong when people are acting for the benefit of society
or to help someone in an emergency, the court will take into account the
context of their actions in the event they are sued’.5Itwasalsoameansby
which to foster the Coalition Government’s vision of a ‘Big Society’, insofar
that the Bill ‘will help to support the Government’s broader aims of encouraging
and enabling people to volunteer and to play a more active role in society’.6
The SARAH Bill7created considerable consternation as it passed through
parliament. Its terms were not amended in the House of Commons8(albeit
that one former Solicitor-General called it ‘a particularly silly piece of legis-
lation’ which the courts would treat ‘with derision’9), but it underwent two
amendments (and encountered more vociferous opposition) in the Lords.10
Lord Pannick witheringly stated that, having practised law for four decades, ‘I
cannot remember a more pointless, indeed fatuous, piece of legislation than
Clause 2 of this Bill, with the possible exception of Clauses 3 and 4 of this
Bill’.11 Lord Lloyd similarly remarked that ‘the only feasible amendment is to
take each of the three clauses in turn, and remove it from the Bill, one by
one.’12
The responses to the consultation by external parties were decidedly mixed.
Some respondents welcomed the Bill, considering that it was useful from
D’s point of view because it ‘will establish additional factors for the court to
consider when examining the merits of a claim, and introduce a measure of
reasonableness to the outcome’.13 Others argued that the Bill was misleading
in that there was no need to protect people who ‘act heroically’, as the Bill
ostensibly sought to do, because the fear of being sued was not the reason that
volunteers did not step forward to assist those in need of medical and other
assistance.14 Others noted ‘misgivings about the effectiveness of the Bill in its
4 Shailesh Vara, Parliamentary Under-Secretary of State for Justice, HC Deb (Public Bills Com-
mittee, Third Sitting) col 62 9 September 2014 (‘clause 3 changes the law’).
5 Ministry of Justice, Factsheet Accompanying the SARAH Bill, 13 Jun 2014, para 1. See too:
Shailesh Vara, HC Public Bills Committee, ibid col 62.
6 Factsheet Accompanying the SARAH Bill, ibid,para2.
7 Introduced into the House of Commons on 12 June 2014 (Bill 9), passed without amendment,
and then introduced into the House of Lords on 21 October 2014 (Bill 47).
8 For a useful description of the Bill’s background, see: Lords Library Notes, LLN-2014-032 (30
October 2014).
9 Sir Edward Garnier QC (Harborough, Con), HC Deb cols 695, 697 20 October 2014.
10 For useful description, see: HC Library Note, SN/HA/6997 (28 January 2015).
11 HL Deb cols 16–17 15 December 2014.
12 HL Deb col 1548 4 November 2014.
13 Written Evidence submitted by the Cheshire Fire and Rescue Service, August 2014 at http://
www.publications.parliament.uk/pa/cm201415/cmpublic/socialaction/memo/evidence.pdf,
para 7 (last accessed 1 August 2016).
14 Wr itten Evidence submitted by the St John Ambulance Brigade, September 2014 ibid,para
4 (rather, the currency of volunteers’ first aid training is far more significant in determining
whether people will step forward to help).
C2017 The Author. The Modern Law Review C2017 The Modern Law Review Limited.
(2017) 80(1) MLR 88–109 89

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT