Legislative Scrutiny: (1) Modern Slavery Bill and (2) Social Action, Responsibility and Heroism Bill

Legislative Scrutiny: (1) Modern Slavery Bill and (2) Social Action, Responsibility and Heroism Bill - Human Rights Joint Committee Contents

2 SOCIAL ACTION, RESPONSIBILITY AND HEROISM BILL

BACKGROUND

2.1 The Social Action, Responsibility and Heroism Bill ("SARAH") was introduced in the House of Lords on 21 October,[112] having completed its passage through the House of Commons on 20 October. The Bill received its Second Reading in the House of Lords on 4 November.

2.2 Lord Faulks QC, Minister of State for Justice, has certified that in his view the Bill is compatible with the Convention rights. We wrote to the Government on 16 July asking a number of questions about the Bill. The Lord Chancellor and Secretary of State for Justice, Rt Hon Chris Grayling MP, responded by letter dated 5 August 2014. Copies of the correspondence are available on our website.[113]

2.3 We received two submissions on the Bill: from the Access to Justice Action Group, arguing that the Bill is unnecessary and, to the extent that it reduces the duty of care owed to people at risk, will lead to breaches of the rights of injured people under Articles 2, 6 and 8 ECHR; and from Slater & Gordon (solicitors) similarly arguing that the Bill is unnecessary to the extent that it is aimed at addressing public perception, and may lead to the erosion of civil rights of ordinary people injured in the workplace through no fault of their own.

INFORMATION PROVIDED BY THE DEPARTMENT

2.4 A separate ECHR Memorandum was published alongside the Bill, which correctly identifies the main human rights issues raised by the Bill. An impact assessment has also been published. Our Legal Advisers met the Bill team on 9 July. The Minister responded promptly and fully to our questions in our letter. WE COMMEND THE DEPARTMENT FOR ACTING IN ACCORDANCE WITH OUR RECOMMENDED BEST PRACTICE IN THE INFORMATION IT HAS PROVIDED TO ASSIST US IN OUR SCRUTINY OF THE BILL'S HUMAN RIGHTS COMPATIBILITY.

THE PURPOSE AND EFFECT OF THE BILL

2.5 The Bill is short, comprising just 5 clauses. According to the Government, its overarching purpose is to encourage volunteering and involvement in social action. The policy objectives behind the Bill were explained in a letter to our Chair from the Under-Secretary of State for Justice, Shailesh Vara MP, dated 23 June 2014:

The Bill stems from our concern that people are being deterred from taking part in voluntary activities, helping others or intervening in emergencies because of the fear that in doing so they may expose themselves to the risk of being held liable if something goes wrong. We also want to make sure that when people have been trying to do the right thing by taking a generally responsible approach towards the safety of others during the course of an activity, the courts will take full account of the circumstances in the event they are sued.

2.6 The Lord Chancellor and Secretary of State for Justice has described the purpose of the Bill as being to curb the health and safety culture.[114] He explained that the Bill was conceived during the Red Tape Challenge on health and safety. He acknowledged that the courts do apply common sense, and very often throw out the most absurd cases, but not before individuals have been subjected to the stresses and strains involved in having to defend claims.

We need a system that is rooted in common sense. Of course those who are negligent, or who act in a way that is foolish or reckless should be able to be punished by the law. But those who are trying to do the right thing should believe that the law will be on their side.

And that is precisely what SARAH will do. The best way to describe the proposed Bill is that it will serve as a signpost from Parliament to the Courts. It will set out very simple protections for those people who act in the interests of society, responsibly or heroically. It will say to the Courts that we want their decisions clearly to take into account whether people have been trying to do the right thing or not. And in particular we want the Bill to serve as a deterrent to jobsworths trying to punish people for doing so.

A handful of simple clauses, but what we hope will be a powerful message about how we want the law to be applied. Judicial discretion will of course remain, but it will be exercised in these cases against the background of a clear message from Parliament.

I want the Good Samaritan who comes to someone's aid, the small business employer who is doing their best, the person trying to do something positive for their community, all to feel that the country and the system is on their side. Time and again we see stories of a jobsworth culture or a legalistic culture that seems to stop common sense in its tracks.

2.7 The Bill makes provision about the matters to which a court "must have regard" in determining a claim in negligence or breach of statutory duty. It will apply when a court, in proceedings for negligence or breach of statutory duty, is determining the steps that a person was required to take to meet a standard of care.[115] The Bill provides that when making such a determination, the court must have regard to three specific matters:

· 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;[116]

· whether the person, in carrying out the activity in the course of which the alleged negligence or breach of statutory duty occurred, demonstrated a generally responsible approach towards protecting the safety or other interests of others;[117] and

· whether the alleged negligence or breach of statutory duty occurred 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 or other interests.[118]

SIGNIFICANT HUMAN RIGHTS ISSUES

2.8 The ECHR Memorandum prepared by the Ministry of Justice correctly identified the two significant human rights issues which the Bill raises:

(1) whether the Bill restricts the right of access to court in such a way as to be incompatible with the right of access to court in Article 6(1) ECHR; and

(2) whether the Bill is compatible with the positive obligation in Articles 2, 3 and 8 to put in place an effective legal framework for the protection of the rights in those Articles (the right to life, the right not to be subjected to inhuman or degrading treatment, and the right to respect for private and family life, including physical integrity).

2.9 The Government considers that the right of access to court in Article 6(1) ECHR is not engaged by the Bill, because it cannot be said to restrict the circumstances in which an individual has access to the courts, nor does it confer immunities from civil liability.

2.10 It accepts that Articles 2, 3 and 8 ECHR are engaged by the provisions of the Bill, because it acknowledges that proceedings for negligence or breach of statutory duty can sometimes be the mechanism by which Convention rights are guaranteed. However, it does not consider that there is any infringement of those rights.

2.11 To enable us to take a view on these human rights compatibility questions, we wrote to the Government asking for further information and explanation about three matters in particular:

(1) whether the Bill is intended to change the substantive law or merely to counter popular misperceptions;

(2) what evidence the Government relies on to demonstrate the need for the Bill; and

(3) the Bill's intended scope of application, including its relationship with other well established legal protections such as those in the Health and Safety at Work Act and the Human Rights Act.

PURPOSE OF THE BILL: SUBSTANTIVE CHANGE OR "SIGNAL"?

2.12 As the Explanatory Notes to the Bill point out, under the current law, a court considering a claim in negligence must determine whether the defendant acted reasonably, taking into account all the circumstances of the case. A court will also take into account all the relevant circumstances in determining whether a defendant was in breach of a duty of care imposed by statute. Case law has established the kinds of factors which might be relevant to such determinations.

2.13 The Government says that the Bill does not change this overarching framework but merely requires the court to have regard to certain specified matters. It says that nothing in the Bill precludes the court from having regard to any other relevant factors or from deciding what weight to give to each of those matters.

2.14 The Minister in his reply to our questions similarly says that the Bill does not tell the court what conclusion it should reach and does not prevent a person from being found negligent if the circumstances of the case warrant it. He says that the Bill will not therefore give anyone licence to take unnecessary risks with people's safety or leave the injured party without a remedy when the defendant has failed to meet the applicable standard of care in all the circumstances of the case.

"However, [the Bill] will send a strong signal to reassure people that the courts will consider, in all cases, the wider context of the defendant's actions prior to reaching a conclusion on liability."

2.15 The Government's ECHR memorandum acknowledges that the courts already take account of a range of matters when determining whether a defendant's conduct has fallen below the standard of care, including the nature of the activity in question, the degree of care which the particular risk or likelihood of injury justified, the gravity of the harm which might be suffered and the cost of mitigating the risk. Case-law shows that the courts consider matters such as whether the defendant was acting in an emergency, whether he or she was acting as a rescuer, and the impact on the future conduct of the activity.[119]

2.16 In other parts of the explanatory material accompanying the Bill, however, it is suggested that the Bill introduces a substantive change to the law. For example, the Government's ECHR Memorandum states that clause 3 of the Bill "requires the court to consider wider aspects of the defendant's conduct than are typically considered by the courts in such cases at present", and acknowledges that it may be the case that the requirement to consider this wider context will change the court's analysis.[120] However, it also states that "it is not intended that this will change the court's overall approach" and that the court will retain its discretion to make such determination as is just in the particular circumstances.

2.17 Clarity about the exact purpose of the Bill is important for the purposes of scrutinising its human rights compatibility. To the extent that the Bill is intended to address a public perception about the law, Parliament has to consider the extent to which it is necessary to legislate rather than inform and educate the public about the current law; and to the extent that the Bill is intended to change the law, Parliament has to consider whether the extent of any reduction in the scope of individuals' access to legal remedies for harm caused by negligence or breach of statutory duty is necessary and proportionate. We therefore asked the Government whether the Bill is intended to change the substantive law of negligence and breach of statutory duty, or solely to counter a public perception that courts do not always have regard to the matters set out in clauses 2 to 4 of the Bill.

2.18 The Government's response draws a distinction between clauses 2 and 4 of the Bill on the one hand and clause 3 on the other. It considers that clauses 2 (social action) and 4 (heroism) "essentially reflect the current law, but emphasise and restate it in a way which will provide reassurance that the court will take these factors into account." Clause 3 (responsibility), on the other hand "represents a change to the current law to ensure that the court takes account of the defendant's general approach, in carrying out an activity, towards protecting the safety and interests of others".

2.19 In some explanations of the purpose of the Bill, immediately following the Queen's Speech, it was suggested that the Bill would lead to a reduction in insurance premiums, but this did not appear in any of the explanatory material which was published with the Bill. We therefore asked the Government whether it was any part of its rationale for the Bill that it would lead to a reduction in insurance premiums.

2.20 The Government replied that reducing insurance premiums is not the principal reason for legislating. It says that its main objective is to reassure the public that if they participate in activities which benefit others, demonstrate a responsible approach towards safety in the course of an activity or selflessly intervene to help somebody in an emergency, the courts will always take that into account in the event that they are sued. If that deters people from bringing spurious claims and has a knock-on effect on insurance premiums, the Government would welcome that outcome, but its own impact assessment acknowledges that any impact on insurance premiums is likely to be slight.

2.21 IT NOW APPEARS TO BE CLEAR, FROM THE GOVERNMENT'S RESPONSE TO OUR QUESTIONS, THAT DIFFERENT PARTS OF THE BILL HAVE DIFFERENT PURPOSES. CLAUSES 2 AND 4 ARE INTENDED TO SEND A SIGNAL DESIGNED TO COUNTER A PUBLIC PERCEPTION ABOUT THE CURRENT LAW, WHILE CLAUSE 3 IS INTENDED TO CHANGE THE SUBSTANTIVE LAW. WE CONSIDER BELOW THE STRENGTH OF THE EVIDENCE THAT EXISTS TO DEMONSTRATE THE NEED FOR LEGISLATION INTRODUCED FOR THESE TWO PURPOSES. AS WE HAVE PREVIOUSLY COMMENTED IN LEGISLATIVE SCRUTINY REPORTS, WE DOUBT WHETHER MERELY SENDING A SIGNAL, RATHER THAN CHANGING THE SUBSTANTIVE LAW, IS AN APPROPRIATE REASON FOR LEGISLATING, UNLESS THERE IS CLEAR EVIDENCE THAT THE LAW IS BEING MISINTERPRETED AND THEREFORE MISAPPLIED IN A WAY WHICH UNDERMINES THE PURPOSE OF THE LAW IN QUESTION (see for example our recent comments on the changes to the offence of child cruelty in our Report on the Serious Crime Bill).

EVIDENCE

2.22 We asked the Government about the evidence it relies on to demonstrate the need for the Bill, whether to counter a public perception about the current law or to introduce a substantive change to that law.

EVIDENCE OF PUBLIC PERCEPTION

2.23 The Explanatory Notes accompanying the Bill say that there is "some evidence" that people are deterred from participating in socially useful activities due to worries about risk and/or liability. The evidence it cites as an example of this evidence is a survey conducted in 2006/07 by the Institute of Voluntary Research and National Centre for Social Research on behalf of the Cabinet Office, in which 47% of just under 300 respondents felt that the worry about risk/liability was a reason for not volunteering.[121] We asked the Government whether the question in the survey about reasons for not volunteering distinguished between "risk" and "liability" and, if so, how many respondents said they were worried about "liability" specifically. We also asked what other evidence exists, apart from the 2007 survey, to demonstrate that the risk of legal liability is a reason why people do not volunteer.

2.24 The Government replied that the 2007 survey did not distinguish between risk and liability. However, the Government points to the fact that bodies such as the National Council for Volunteering Organisations ("NCVO") welcome the Bill, and cites the executive director for volunteering and development at the NCVO who said that his organisation continues to get a lot of calls from charities and individual volunteers "about risk and liability". He said that the chances of any action being taken against them are very low but there is clearly a great concern about risk, and anything that can be done to break down barriers to people getting involved in their communities is very welcome.

2.25 We also asked the Government how its justification for the Bill is affected by the fact that rates of formal volunteering, which declined steadily between 2005 and 2010/11, had returned to peak levels by 2012-13. The Government replied that volunteering rates are increasing thanks in part to initiatives the Government has been backing to increase participation. It acknowledges that there have been positive developments in terms of the number of people volunteering, but considers that "volunteering rates could be increased still further if barriers that deter people from getting involved, such as worries about liability, are removed."

2.26 WE HAVE CONSIDERED CAREFULLY THE STRENGTH OF THE EVIDENCE BASE SHOWING THAT THE SPECIFIC RISK OF LEGAL LIABILITY, AS OPPOSED TO RISK GENERALLY, IS A REASON WHY PEOPLE DO NOT VOLUNTEER, AND WE HAVE FOUND IT WEAK. THE EVIDENCE RELIED ON BY THE GOVERNMENT AS DEMONSTRATING A PUBLIC PERCEPTION THAT VOLUNTEERING CARRIED TOO GREAT A RISK OF LEGAL LIABILITY IS ALMOST ENTIRELY ANECDOTAL, AND WE DO NOT CONSIDER SUCH EVIDENCE TO BE A SOUND BASIS FOR LEGISLATING.

EVIDENCE OF JUDICIAL DISREGARD OF THE RELEVANT MATTERS

2.27 Assuming that the Government considers the Bill to be necessary in order to meet a real practical problem of courts paying insufficient regard to the matters specified in clauses 2 to 4 in actions for negligence or breach of statutory duty, we asked the Government to identify examples of the cases on which it relies to demonstrate that courts sometimes do not have regard to those matters; and to provide examples of the sorts of claims which succeed under the current law but will not after the passage of the Bill.

2.28 The Government replied that "the Bill does not stem from any perception on the part of the Government that the courts are misapplying the current law." Rather, it relies on the perception on the part of defendants that they will be found negligent or in breach of statutory duty which, the Government says, is driving them to be cautious, making volunteers for example take out insurance when they do not need to, making employers settle damages claims out of court rather than run the risk of losing, and stopping passers-by going to the aid of other people who are in difficulty. The Government says that it is immaterial whether or not these cases actually reach court: it is the perception that matters.

2.29 At the same time, however, the Government also says it "would not be legislating if [it] […] thought the Bill would make no material difference to the way courts determine negligence claims or claims for breach of relevant statutory duties." However, it says that "it is not possible to provide hypothetical examples of cases which would be decided differently." In fact, we had asked for actual examples of cases that might be decided differently under the Bill, rather than hypothetical examples, in order to test the strength of the case for legislating, but the Minister's response does not provide any actual examples.

2.30 We also asked to be provided with some examples of the sorts of cases the Lord Chancellor had in mind when he said in his piece referred to above that "time and again we see stories of a 'jobsworth' culture or a legalistic culture that seems to stop common sense in its tracks." The Government's response does not provide any examples of such cases, but says that the provisions in the Bill are intended to complement various measures taken to discourage speculative personal injury claims and to ensure that such claims are dealt with fairly. It says that there has been an increase of 30% in the number of personal injury claims brought against employers between 2010-11 and 2013-14 (from 81,000 to 105,000). It acknowledges that "many of these claims may have been valid ones, but the rise could also be attributed to an increasingly litigious climate." It does not, however, provide any analysis of actual cases to demonstrate by reference to evidence that there has been an increase in the number of unmeritorious or speculative claims.

2.31 We note that the Compensation Act 2006 already provides that, in considering what was necessary to meet the standard of care in a particular case, the court can look at whether a particular requirement might prevent a desirable activity being carried out to any extent or discourage people from undertaking functions in relation to it.[122] Section 1 of the Act provides:

ETERRENT

EFFECT

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—

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

(b) discourage persons from undertaking functions in connection with a desirable activity.

2.32 WE DO NOT CONSIDER THAT THE GOVERNMENT HAS DEMONSTRATED BY EVIDENCE THAT COURTS SOMETIMES PAY INSUFFICIENT REGARD TO THE MATTERS SET OUT IN CLAUSES 2 TO 4 OF THE BILL WHICH MAKES IT NECESSARY TO TAKE THE UNUSUAL STEP OF INTRODUCING LEGISLATION DIRECTING THEM TO HAVE REGARD TO THOSE MATTERS WHEN CARRYING OUT THEIR JUDICIAL FUNCTION OF ADJUDICATING IN INDIVIDUAL CASES. EVEN WERE WE SATISFIED THAT SUCH EVIDENCE EXISTS, WE WOULD DOUBT THE APPROPRIATENESS OF DIRECTING THE COURTS, IN MANDATORY LANGUAGE, TO HAVE REGARD TO CERTAIN FACTORS WHEN CARRYING OUT THEIR JUDICIAL FUNCTION, RATHER THAN LEAVING THE MATTER TO THEIR DISCRETION, FOR THE SAME REASONS WE GAVE IN OUR REPORTS ON THE GOVERNMENT'S PROPOSED REFORMS TO JUDICIAL REVIEW IN PART 4 OF THE CRIMINAL JUSTICE AND COURTS BILL.

SCOPE OF APPLICATION

2.33 The Government's explanation of the purpose of the Bill contained in the explanatory material accompanying it is that it is intended to benefit "volunteers" in the sense of private individuals who choose to give up their time, or put themselves at risk, for the greater good. As drafted, however, the Bill is of much wider application, and could be invoked by other defendants to claims for negligence or breach of statutory duty, including employers and public authorities. We therefore asked the Government about how the provisions in the Bill are intended to affect the other legal duties owed by such defendants, for example under health and safety legislation and the Human Rights Act.

CLAIMS AGAINST EMPLOYERS

2.34 As the Explanatory Notes point out, the Bill is general in its application, so it could apply to claims against individuals or organisations, including employers. The potentially wide application of the Bill was also highlighted in the Minister's original letter to us explaining the policy objectives behind it, in which he said:

We anticipate that the provisions will be relevant in a wide range of situations where people have been acting heroically, for the benefit of others, or have adopted a responsible approach towards the safety of others in the course of an activity, both where they are doing so in a voluntary capacity or in the course of employment or some other activity.

2.35 On 1 July the Lord Chancellor and Secretary of State for Justice said, in response to an oral question:

123

2.36 The Access to Justice Action Group, amongst others, has raised concerns that clause 3 of the Bill will make it more difficult for employees to claim compensation for injuries suffered at work. The Enterprise and Regulatory Reform Act 2013 has already removed the right of civil action against employers for breach of statutory duty in relation to health and safety at work regulations, so that compensation can only be claimed for such breaches where it can be proved that the employer has been negligent.[124]

2.37 We asked the Government whether its intention is that the Bill will apply in actions for negligence by employees against employers and, if so, how the Government intends clause 3 of the Bill in particular to affect the statutory duties owed by employers under health and safety legislation; and why clause 3 of the Bill is considered necessary in addition to s. 69 of the Enterprise and Regulatory Reform Act 2013.

2.38 The Government says in response that its aim in introducing the changes in s. 69 of the Enterprise and Regulatory Reform Act 2013 was to remove the fear of being sued for strict liability health and safety duties that causes employers to go beyond what the law requires, which was undermining their confidence to grow and develop their businesses and which meant they were incurring unnecessary costs. However, it is still possible for the injured party to sue an employer for negligence and to rely on a breach of a health and safety duty as evidence to support the claim. The Government says that clause 3 of the Bill is intended to apply in that sort of case, which it considers to be important to ensure that employers who have demonstrated a generally responsible approach to health and safety know that this will be taken into account by the courts. The rationale is said to be "to provide reassurance to responsible employers who do the right thing". The Bill "is not designed to reduce standards of health and safety in the workplace" and "will not protect negligent employers who do not have a responsible approach to health and safety."

2.39 We have considered carefully the effect of clause 3 of the Bill. Although the Government says in response to our questions about this clause that it is to "provide reassurance to responsible employers" and not to reduce standards of health and safety in the workplace, elsewhere in the Government's response, as we point out above, it is clear that the Government does consider that this clause introduces a substantive change in the law and will therefore make a difference to the outcome of cases. TO THE EXTENT THAT CLAUSE 3 OF THE BILL WILL LEAD TO SOME HEALTH AND SAFETY CASES AGAINST EMPLOYERS BEING DECIDED DIFFERENTLY, WE DO NOT CONSIDER THAT THE GOVERNMENT HAS DEMONSTRATED THE NEED TO CHANGE THE LAW TO RESTRICT EMPLOYEES' RIGHT OF ACCESS TO COURT FOR PERSONAL INJURY CLAIMS IN THE WORKPLACE.

CLAIMS AGAINST PUBLIC AUTHORITIES

2.40 The Bill is also drafted sufficiently widely to apply to claims for negligence or breach of statutory duty against public authorities, or employees of such public authorities. Such defendants will generally be able to satisfy the definition in clause 2 that they were acting "for the benefit of society or any of its members", may have been protecting the "safety or other interests of others" (clause 3) and, in the case of the emergency services, may have been intervening in an emergency (clause 4).

2.41 We therefore asked whether it is the Government's intention that the Bill will apply in actions for negligence or breach of statutory duty against public authorities, or individuals working for public authorities, such as the police, social workers, health care workers and, if so, how the provisions in the Bill affect the other legal duties owed by such authorities and their employees. The Government confirmed that the Bill has general application and will apply whenever the court is considering a claim for negligence or breach of statutory duty, including against a public authority or its employees, but it will be for the court to decide how much weight to give to the factors specified in the Bill in the particular circumstances of the case. WE DRAW TO PARLIAMENT'S ATTENTION THE GOVERNMENT'S ACKNOWLEDGMENT THAT THE BILL IS DRAFTED SUFFICIENTLY WIDELY TO APPLY TO CLAIMS BROUGHT NOT ONLY AGAINST VOLUNTEERS BUT AGAINST PUBLIC AUTHORITIES.

2.42 We also asked the Government whether "breach of statutory duty" in the Bill includes claims that a public authority has acted incompatibly with a Convention right, in breach of the duty to act compatibly in s. 6(1) of the Human Rights Act 1998 and, if so, how the provisions in the Bill are intended to affect the duty of such authorities to take steps to protect a person from harm to their Convention rights where they are required to do so by a positive obligation imposed by the Convention.

2.43 The Government replied that the only statutory duties that the Bill is concerned with are those that operate in a similar way to the law of negligence, i.e. where the court has to determine what steps the defendant should have taken to meet an applicable standard of care (e.g. the duty owed by the owner or occupier of land under the law of occupiers' liability, or by a highways authority under the Highways Act). It says that the Bill will not extend to the duty to act compatibly with Convention rights under s. 6(1) of the Human Right Act 1998 "as this does not involve a requirement to meet a standard of care."

2.44 We note, however, that the duty to act compatibly with Convention rights does involve a requirement to meet a standard of care where the right in question imposes a positive obligation to take appropriate steps to protect that right, such as the obligation on the police under Article 2 ECHR to protect a person against a threat to their life or physical integrity of which the authorities are aware or ought to be aware,[125] and the positive obligation on the police to investigate serious violence under Article 3 ECHR.[126] In actions for damages under the Human Rights Act (against public authorities such as the police, for example) for failing to take the necessary steps to fulfil such positive obligations, one of the issues for the court to decide is whether there was a breach of the State's duty of care which requires an assessment of whether the steps taken were reasonable in all the circumstances.

2.45 WE DO NOT SHARE THE GOVERNMENT'S VIEW THAT THE BILL WILL NOT APPLY TO ACTIONS FOR BREACH OF THE DUTY TO ACT COMPATIBLY WITH CONVENTION RIGHTS UNDER S. 6(1) OF THE HUMAN RIGHTS ACT 1998, WHERE THE CLAIM IS FOR A BREACH OF A PUBLIC AUTHORITY'S POSITIVE OBLIGATION TO TAKE STEPS TO PROTECT CONVENTION RIGHTS. WHILE THE GENERAL INTERPRETIVE OBLIGATION IN S. 3 OF THE HUMAN RIGHTS ACT SHOULD PREVENT THE NEW ACT FROM BEING INTERPRETED AND APPLIED SO AS TO PREVENT DAMAGES BEING AWARDED WHERE REQUIRED BY THE CONVENTION, THE BREADTH OF THE WORDING OF THE BILL GIVES RISE TO UNNECESSARY UNCERTAINTY ABOUT THE EFFECT OF THE BILL ON THE LIABILITY OF PUBLIC AUTHORITIES FOR FAILURE TO TAKE STEPS TO PROTECT CONVENTION RIGHTS.