With the social action, responsibility and heroism (‘SARAH’) bill due its second reading next week, we can expect further grumbling from lawyers who complain the bill won’t meaningfully affect anyone’s situation in law and is at best pointless and at worst grandstanding. (See, for example, Lance Mason’s Lesley Layton or Bates Wells Braithwaite’s Sarah Bull.)
I’m going to explore the case for SARAH’s defence.
First, let’s deal with whether the bill will make a legal difference. This is up for grabs – maybe, maybe not; Justin Davis Smith explores further.
So what of those who say it will make no difference in a courtroom and is therefore pointless? I think they’ve made a logical leap.
Legislation isn’t just for legal practitioners
Legislation has a purpose beyond its actual legal power. The law is a way that a society codifies and makes clear what it believes, a reflection of our shared values. The government believes voluntary action is a good thing, as do most of us, and it wants to send a message that society supports and encourages it. The ‘Big Society’ brand has struggled, but this government has a clear belief in letting people create their own solutions and this new law shows it.
Sending a message
As a former journalist, Mr Grayling knows the demonstrative value to be reaped from ‘a new law’. This is old PR hat. Want to get your message in the media? Find a new statistic to hang it on. Want to get the same message in again? Put it in A New Report Out Today ™. What is in effect a tiny tweak to the statutes but can be presented as a new law is more than enough to send out a clear message about the government’s beliefs and to leverage some coverage.
Lawyers, however, deplore using the statute book for PR purposes.
Realpolitik
They argue that the right response is not to change the law but to educate people to the law as it stands. The reality is that the public are not queuing up to be educated about the finer points of liability. Having many more remunerative or entertaining things to do with their time, they take a rough impression from the news. News outlets are disinclined to report that things are all fine or that their readers are in fact slightly misinformed about some legal technicalities. For better or worse, that’s not their job. News is interested in the new and the exceptional: if it’s neither, it’s not going to make the cut.
Grayling’s got form
This isn’t the first time Mr Grayling has pulled this trick as Lord Chancellor. A previous innovation of his was to amend the law to allow householders to use ‘disproportionate force’ against intruders. In practice, the legal position of someone confronted in their home by a ne’er do well scarcely shifted following his changes, but the coverage made its mark. Lawyers hated it (a bit of free PR advice for the anti-Grayling crowd – whatever his faults, attacking him for not being a lawyer reflects more badly on you than him; it doesn’t make him look inadequate for the role, it makes you look supercilious), but I think it’s a fair bet householders’ awareness of their rights has increased.
It’s all PR
From time to time, governments codify existing case law in new legislation. This is unlikely to be changing anyone’s practical legal position, but that doesn’t render the exercise pointless. The added certainty and clarity is beneficial. I suspect you’d rather hear that you have rights under the sale of goods act than that you have rights under decades of case law buried in arcane tomes.
And without ascending into the realms of the sociological, it wouldn’t be a huge leap to suggest that on some level, all legislation is about PR.
Not that all Mr Grayling’s spin is for the good, I should add. His rhetoric on meddlesome charities bringing pointless judicial reviews was deeply misleading. It was undermined by his officials’ assessment that showed it was untrue, and thankfully, the government have since soft-pedalled on these ill-advised changes.
So, is it worthwhile?
One blogger said the bill was ‘a waste of parliamentary time’. Whether or not there’s merit – or even truth – in concerns parliament is under-legislating, if this is a waste of parliamentary time, then it’s certainly not a waste of very much parliamentary time. At under thirty lines long, it won’t have parliamentarians popping the Pro Plus.
In sum: Will it make a difference? Maybe. Does it send a clear message about the value placed on voluntary action? Yes. Could that help reduce public anxieties about liability? Quite possibly.
As to whether it’s good idea to constantly tweak the law for PR purposes, I wouldn’t make a habit of it. It’s not great law-making and you might inadvertently break something, the trick will grow old and harder to pull, and you’ll get yourself a bit of a reputation. But there are far worse things you can do as a minister. Lawyers are wrong to be purists. In this case, if there is a problem with public perceptions of liability, and if this can help remedy that, then it could be a worthwhile step. The SARAH Bill’s message is one we back, and one we look forward to making clear to all.
Aidan Warner is NCVO’s communications manager. He writes about charity communications. He has previously worked at the BBC, the General Medical Council and Mind, the mental health charity. 
