- '(1) In respect of volunteering and voluntary organisations there is no liability in negligence for something that might not be avoided by taking reasonable care or exercising reasonable skill.
- (2) The cases to which subsection (1) applies include, for example, cases where liability in negligence is alleged to arise in connection with recreational, sporting, play or other activities as a result of something that is an inherent risk of the activity concerned.
- (3) Where persons suffering harm (and the parents of minors suffering harm) have knowingly accepted that there were risks involved, the court shall take account of that fact.
- (4) In this section "negligence" means the breach—
- (a) of any obligation, arising from the express or implied terms of a contract, to take reasonable care or exercise reasonable skill in the performance of the contract;
- (b) of any common law duty to take reasonable care or exercise reasonable skill (but not any stricter duty);
- (c) of the common duty of care imposed by the Occupiers' Liability Act 1957 or the duty imposed by the Occupiers' Liability Act 1984.
- (5) The Secretary of State shall by regulations prescribe the meaning of "volunteering" and "voluntary organisations" in this section.
- (6) Regulations under subsection (5) shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament'—.[Mr. Brazier.]
§ Brought up, and read the First time.1644 9.54 am
§ Madam Deputy Speaker
With this it will be convenient to discuss the following: New clause 3—Non-application to fatal accidents—
'This Act shall not apply to civil proceedings in court for negligence or breach of statutory duty in respect of fatal accidents.'.
§ New clause 6—Role of expert evidence—
'The presumption of exclusion of a finding of negligence or breach of statutory duty provided by section 2(6) of this Act shall be rebuttable by expert evidence.'.
§ New clause 7—Publicising the terms of section 2(6)—
'The Secretary of Stale shall take such steps as he considers necessary to ensure the terms of section 2(6) are brought to the attention of persons who are intending to undergo activities covered by this Act.'.
§ New clause 11—Absence of statement—
'In an action for damages for personal injury a court shall take into account the absence of a statement of inherent risk in circumstances where a statement might have been expected as evidence of the lack of a risk assessment for the activity concerned.'.
§ New clause 12—Application to catastrophic injuries—
'This Act shall not apply in respect of civil proceedings for personal injury where the injuries concerned are catastrophic within the meaning of the Judicial Studies Board Guidelines on Personal Injury Damages.'.
§ New clause 16—Non-application to activities involving enforceable contracts—
'This Act shall not apply to any activity where there is a contract enforceable in law to provide that activity between the person undertaking the activity and its provider.'.
§ New clause 17—Application only in respect of fast track procedures—
'This Act shall only be taken into account by any court in considering a claim for negligence or breach of statutory duty resulting in personal injury if that claim is commenced in the fast track as provided for by the Civil Procedure Rules.'.
§ New clause 18—Liability under Occupiers Liability Act—
'Nothing in this Act shall remove or reduce liability under the Occupiers Liability Act 1984 from a farmer or land owner.'.
§ New clause 19—Vicarious liability resulting from criminal conduct—
'Nothing in this Act shall reduce or remove vicarious civil liability for personal injury (including psychological injury) from a voluntary body or voluntary organisation as a consequence of criminal conduct by a volunteer or employee of that body or organisation.'.
§ New clause 20—Continuing liability of local authority—
'Nothing in this Act shall reduce or remove the liability for negligence or breach of statutory duty for personal injury caused by a local authority.'.
§ New clause 24—insurance companies—
'An insurance company shall not take the existence or non-existence of a statement of inherent risk into account when quoting a price for an insurance premium to a volunteering body or voluntary organisation.'.
§ New clause 25—Non-application for injuries of maximum severity—
'This Act shall not apply in respect of civil proceedings for personal injury where the injuries concerned are of maximum severity within the meaning of the Judicial Studies Board Guidelines on personal injury damages.'.
§ New clause 26—Liability under Occupiers Liability Act 1957—
'Nothing in this Act shall remove or reduce liability under the Occupiers Liability Act 1957 from a farmer or landowner.'.
§ New clause 28—Risk assessment:—
- '(1) It shall be the duty of any volunteer, employee or voluntary body to whom this act applies
- (a) to undertake a risk assessment,
- (b) to identify risks or potential harm to people or a building,
- (c) to ensure that the risk assessment complies with any rules, advice or guidance of any body governing the activity,
- (d) to document any such risk assessment, and
- (e) to ensure that all those who undertake the risk assessment are suitably trained, qualified and experienced.
- (2) Failure to perform this duty shall be a criminal offence punishable on summary conviction to a fine at level 3.
- (3) Failure to perform the risk assessment shall disentitle the volunteer, employee or voluntary body from reliance on any of the other provisions of this Act.'.
§ New clause 30—Exclusion of claims in respect of death or serious injury—
- '(1) Nothing in this Act shall affect—
- (a) an action for damages under the Fatal Accidents Act 1976 (c.30); or
- (b) any other claim in respect of death or serious injury.
- (2) In this section, "serious injury" includes damage to an internal organ and impairment of a bodilv function.'.
§ New clause 31—Exclusion of claims by protected persons—
- '(1) A person to whom this Act applies may not present a statement of inherent risk to a protected person (or, if he is aged less than sixteen, to his parent or guardian).
- (2) Nothing in this Act shall affect a claim brought by or on behalf of a protected person.
- (3) A person is a "protected person" if he is
- (a) a person who has a learning difficulty, or
- (b) a person who has a mental disability.
- (4) For the purposes of this section. a person has a learning difficulty if—
- (a) he has a significantly greater difficulty in learning than the majority of persons of his age, or
- (b) he has a disability which either prevents or hinders him from making use of facilities of a kind generally provided for persons of his age by schools or other institutions providing education or training.
- (5) For the purposes of this section, "mental disability" means a disability or disorder of the mind or brain, whether permanent or temporary, which results in an impair vent or disturbance of mental functioning.'.
§ Amendment No. 139, in page 1, line 1, leave out Clause 1.
Amendment No. 104, in page 1, line 2 [Clause 1], at end insert
'activity" means participation in amateur sport, adventure training, and any other amateur put suit involving vigorous physical activity'.
Amendment No. 105, in page 1, line 2, at end insert
'activity" means any amateur pursuit involving vigorous physical activity listed in regulations approved by both Houses of Parliament'.
Amendment No. 106, in page 1, line 2, at end insert
'activity" means any amateur pursuit listed by order by the Secretary of State'.
§ Amendment No. 142, in page 1, leave out lines 3 to 5.
Amendment No. 143, in page 1, line 6, leave out from `employee' to end of line 13 and insert
'means an employee of a voluntary organisation;'.
Amendment No. 30, in page 1, line 7, after 'person' insert
'who has no other contractual arrangement with that organisation or body'.
Amendment No. 31, in page 1, line 7, after 'person', insert
'who has no other contractual arrangement with that organisation or body and has had no such arrangement in the previous 3 years'.
Amendment No. 16, in page 1, line 7, after `organisation', insert
'who is not a director or office holder of the organisation'.
Amendment No. 7, in page 1, line 7, after 'body', insert
'on a contract which provides for a maximum number of hours work per week'.
Amendment No. 9, in page 1, line 7, after 'body', insert
'who is not a director or other office holder of that organisation or body'.
Amendment No. 8, in page 1, line 8, after `responsibilities', insert
'(which are not responsibilities within his job description or job title)'.
Amendment No. 11, in page 1, line 12, after `expenses', insert
'limited to 1 per cent. of his basic contractual salary'.
§ Amendment No. 144, in page 1, leave out lines 14 and 15.
Amendment No. 13, in page 1, line 15, after `constituted', insert
'and registered with the Charities Commission'.
§ Amendment No. 145, in page 1, leave out lines 16 to 18.
Amendment No. 10, in page 1, line 16, after `employed', insert
'(but not on a contract which provides for overtime to be worked for payment or for time off in lieu)'.
Amendment No. 15, in page 1, line 17, after `organisation', insert
'on a fixed hours contract that does not provide for payment of overtime or time off in lieu of overtime'.
Amendment No. 14, in page 1, line 17, leave out
'whether or not paid at the time'.
Amendment No. 146, in page 1, line 20, leave out from beginning to end of line 22 and insert
'a body the activities of which are carried on otherwise than for profit, but does not include a public or local authority.'.
Amendment No. 128, in page 1, line 22, after `purposes', insert
'but excluding schools, youth organisations or youth clubs'.
Amendment No. 1, in page 1, line 22, at end insert
'but in either case shall not include a school or other educational establishment.'.
Amendment No. 2, in page 1, line 22, at end insert
'but in either case shall not include a church or other religious establishment.'.
Amendment No. 3, in page 1, line 22, at end insert
'but in either case shall not include a housing association.'.
Amendment No. 4, in page 1, line 22, at end
'but in either case shall not include any organisation established by central Government or a local authority.'.
Amendment No. 5, in page 1, line 22, at end insert
'but in either case shall not include any organisation with a turnover in excess of £100,000 or such other figure as shall be prescribed by order.'.
Amendment No. 6, in page 1, line 22, at end insert
'but in either case shall not include any organisation involved with training with firearms or other weapons.'.
§ Amendment No. 147, in page 2, line 1, leave out from beginning to end of line 17 and insert—
- '(a) an individual who provides unpaid services to, or on behalf of, a voluntary organisation; or
- (b) a person who, without payment, allows the use of goods or premises for the purposes of activities organised by a volunteer or voluntary organisation.'.
§ Amendment No. 26, in page 2, line 1, leave out 'or on behalf of.
Amendment No. 32, in page 2, line 5, after 'worth', insert
'or future expectation of any contractual arrangement whether by employment contract or for commercial services'.
Amendment No. 33, in page 2, line 7, after `expenses', insert
'limited to a maximum of £500 in any one financial year or such higher figure as shall be prescribed by order'.
Amendment No. 20, in page 2, line 11, after 'access' insert
'pursuant to a written agreement with a voluntary organisation or voluntary body.
Amendment No. 21, in page 2, line 12, after `activity', insert
'formally organised by a voluntary organisation or voluntary body with the objects of that organisations constitution and professional competence or reasonably ancillary activities.'.
§ Amendment No. 19, in page 2, line 13, leave out from `land' to end of line.
§ Amendment No. 22, in page 2, line 14, leave out paragraph (c).
§ Amendment No. 23, in page 2, line 17, leave out `whether or not' and insert 'if'.
§ Amendment No. 24, in page 2, line 17, after 'is', insert 'not'.
§ Amendment No. 25, in page 2, line 17, leave out from end to end of line 26.1648
§ Amendment No. 148, in page 2, leave out lines 18 to 26.
§ Amendment No. 35, in page 2, line 20, leave out 'whether or not in' and insert 'outside a'.
§ Amendment No. 34, in page 2, line 21, leave out from `gain;' to end of line 26.
§ Amendment N o. 130, in page 2, line 22, leave out `services' and insert 'activities'.
§ Amendment No. 36, in page 2, line 24, leave out paragraph (b).
§ Amendment No. 37, in page 2, line 24, leave out `school or'.
§ Amendment No. 38, in page 2, line 25, leave out `school'.
§ Amendment No. 149, in page 2, line 26, at end insert—
- '(2) In this section—
- (a) references to payment are to payment in money or money's worth, and
- (b) references to anything being provided unpaid, or without payment, are to its being provided without payment, or any expectation of payment.
- For this purpose the reimbursement of reasonable and proper expenses does not count as payment.'.
§ Amendment No. 140, in page 2, line 27, leave out Clause 2.
§ Amendment No. 150, in page 2, line 28 [Clause 2], leave out subsection (1) and insert—
- '() This Act applies to—
- (a) volunteers,
- (b) voluntary organisations, and
- (c) employees.
- (a) by that person, or
- (b) in the case of a volunteer or employee, by the voluntary organisation concerned,
a statement (a "statement of inherent risk") setting out the principal risks inherent in the activity.'.
Amendment No. 41, in page 2, line 28, leave out
'employee, voluntary body or voluntary organisation'.
§ Amendment No. 121, in page 2, line 28, leave out `may' and insert 'must:—
- (a) have undergone suitable training
- (b) currently hold qualifications to supervise the activity
- (c) carry insurance in respect of the activity'.
Amendment No 39, in page 2, line 29, after `person', insert
`or in the event the per son is under the age of 16, in person to his parent or guardian)'.
Amendment No. 40, in page 2, line 30, leave out
'administered or managed by or'.
§ Amendment No. 42, in page 2, line 30, leave out from `volunteer' to 'body' in line 32.
§ Amendment No. 122, in page 2, line 33, leave out 'the principal' and insert 'all the'.
§ Amendment No. 43, in page 2, line 33, leave out `principal'.
§ Amendment No. 123, in page 2, line 33, leave out `inherent to' and add 'associated with'.1649
§ Amendment No. 44, in page 2, line 35, after `personal', insert 'or psychological'
§ Amendment No. 124, in page 2, line 37, leave out `likely to be' and insert 'which may.
§ Amendment No. 125, in page 2, line 38, leave out from 'activity' to end of line.
§ Amendment No. 138, in page 2, line 38, leave out 'but need not' and insert 'and shall'.
§ Amendment No. 151, in page 2, line 39, leave out`, voluntary body'.
§ Amendment No. 46, in page 2, line 41, after `criminal', insert 'or civil'.
§ Amendment No. 126, in page 2, line 42, leave out 'not apply to' and insert 'not be permissible for'.
§ Amendment No. 152, in page 2, line 43, leave out from beginning to end of line 47 and insert—
- '(i) an activity which a school obliges a child to undertake, if no alternative is offered, or
- (ii) any other activity which the person concerned is obliged to undertake in performance of contractual obligations, in the course of his employment or for other reasons.'.
§ Amendment No. 127, in page 2, line 46, leave out `school' and insert 'any educational'.
§ Amendment No. 119, in page 2, line 46, leave out `obliged' and insert 'invited'.
§ Amendment No. 120, in page 2, line 47, at end insert—
- '(iii) any period when the participant is being carried in a vehicle on a public highway
- (iv) any activity to which the Unfair Contract Terms Act 1977 applies'.
§ Amendment No. 114, in page 2, line 48, leave out `indicate' and insert 'state'.
Amendment No. 115, in page 2. line 49, after 'by', insert
'and the relevant experience of'.
Amendment No. 48, in page 2, line 50, at end insert—
'(aa) the relevant qualifications expected for supervisors of such activities by any professional, sporting or other umbrella organisations with recognised experience in the field, or of which the voluntary organisation or voluntary body is a member'.
Amendment No. 49, in page 2, lin: 50, at end insert—
'(aa) whether a risk assessment of the activities has been carried out and if so on what date and by whom;'
Amendment No. 50, in page 2, line 50, at end insert—
'(aa) whether a safety inspection of Any premises or land involved in the activities has been carried out and if so on what date, by whom, and in the case of outside activities, under what weather and light conditions the inspection was carried out'.
Amendment No. 51, in page 2, line 50, at end insert
'(aa) if the activities involve the use of equipment, when that equipment was last tested and by whom'.
Amendment No. 52, in page 2, line 50, at end insert—
'(aa) If the person undertaking the activity—
Amendment No. 72, in page 2, line 50, at end insert—
'(aa) details of the insurance arrangements in place for the activities, including—
Amendment No. 102, in page 2, line 50, at end insert—
(aa) the extent to which the Statement excludes the right to bring an action for damage in the event of a personal injury being sustained.'.
Amendment No. 103, in page 2, line 50, at end insert—
'(aa) in express terms the meaning, effect and consequences of paragraph (b) in any subsequent action for damages in the event of injury being sustained whilst undertaking the activity.'.
§ Amendment No. 116, in page 3, line 1, after second `the', insert 'reasonable and lawful'.
§ Amendment No. 153, in page 3, line 1, after 'obey the' insert 'reasonable'.
Amendment No. 53, in page 3, line 2, at end insert—
'(ba) what steps will be taken in the event of the person
Amendment No. 54, in page 3, line 2, at end insert—
'(ba) whether such instructions will be given in writing, verbally or a mixture of both.'.
§ Amendment No. 57, in page 3, line 3, leave out paragraph (c).
§ Amendment No. 55, in page 3, line 3, leave out 'sixteen' and insert 'eighteen'.
§ Amendment No. 59, in page 3, line 3, after 'sixteen', insert `(the under age person)'.
§ Amendment No. 154, in page 3, line 6, after 'obey' insert 'the reasonable instructions of.
§ Amendment No. 155, in page 3, line 7, leave out from `activities' to end of line 9.
§ Amendment No. 117, in page 3, line 7, at end insert—
- '(iii) understand the activity himself, and
- (iv) ensure the child understands the activity'.
§ Amendment No. 60, in page 3, line 8, leave out paragraph (d).
§ Amendment No. 56, in page 3, line 8, leave out `sixteen' and insert 'eighteen'.
Amendment No. 118, in page 3, line 9, leave out
`for the safe conduct of the activity' and insert 'for his own safety'.
Amendment No. 61, in page 3, line 9, after 'activity', insert
'insofar as that activity is exclusively within the risks identified in the statement.'.
§ Amendment No. 64, in page 3, line 11, after 'relate', insert 'not'.
§ Amendment No. 62, in page 3, line 11, leave out from `to' to second 'or' in line 13.
Amendment No. 157, in page 3, line 11, leave out
`administered or managed by or under the control of' and insert 'provided by'.
Amendment No. 158, in page 3, line 13, leave out
'voluntary organisation or volunteering body' and insert 'or voluntary organisation'.
§ Amendment No. 65, in page 3, line 13, leave out 'or' and insert 'but only'.
§ Amendment No. 63, in page 3, line 14, leave out `including a school visit'.
Amendment No. 112, in page 3, line 15, leave out
`need only be presented once'
`must be presented on every occasion that the activity is undertaken'.
§ Amendment No. 66, in page 3, line 15, leave out `only'.
Amendment No. 67, in page 3, line 15, leave out 'once' and insert
`on each occasion the activity is to be undertaken'.
§ Amendment No. 159, in page 3, line 15, leave out `adult'.
Amendment No. 160, in page 3, line 15, leave out
`the parent or guardian of the child concerned'
`,if he is aged less than sixteen, to his parent or guardian'.
Amendment No. 113, in page 3, line 16, at end insert—
'(c) must be prepared in advance of every activity'.
§ Amendment No. 68, in page 3, line 17, after 'signed', insert 'and dated'.
§ Amendment No. 108, in page 3, line 18, leave out 'or on behalf of.
Amendment No. 161, in page 3, line 19, leave out paragraph (b) and insert—
'(b) if that person is a volunteer or an employee, on behalf of the voluntary organisation concerned;'.
§ Amendment No. 69, in page 3, line 21, leave out `sixteen' and insert 'eighteen'.
§ Amendment No. 109, in page 3, line 23, leave out paragraph (d).
§ Amendment No. 70, in page 3, line 23, leave out `sixteen' and insert 'eighteen'.
§ Amendment No. 162, in page 3, line 24, at end insert 'and'.
§ Amendment No. 71, in page 3, line 25, leave out `eleven' and insert 'fourteen'.1652
§ Amendment No. 110, in page 3, line 25, leave out `eleven' and insert `eighteen'.
Amendment No. 111, in page 3, line 26, at end insert
`in default of this the statement shall be of no effect'.
Amendment No. 133, in page 3, line 26, at end insert-=
'(f) in the event of continuous or repeated activities at least annually'.
§ Amendment No. 73, in page 3, line 27, leave out subsection (6).
Amendment No. 163, in page 3, line 27, leave out from beginning to Statement' in line 28 and insert
'Where a person to whom this Act applies has presented'.
§ Amendment No. 164, in page 3, line 29, after 'Risk' insert `to an individual'.
§ Amendment No. 75, in page 3, line 30, leave out `negligence or'.
Amendment No. 76, in page 3, line 30, leave out
'or breach of statutory duty'.
Amendment No. 165, in page 3, line 31, leave out from first 'the' to 'a court' in line 33 and insert
'person who presented the statement (or, in the case of a volunteer or employee, of the voluntary organisation concerned)'.
§ Amendment No 78, in page 3, line 31, after `volunteer', insert 'or'.
Amendment No 79, in page 3, line 31, after `employee', insert
`but not the vicarious liability of.
§ Amendment No. 77, in page 3, line 31, after 'any', insert 'personal'.
Amendment No 80, in page 3, line 32, after `employed', insert
'or the personal liability of'.
§ Amendment No. 84, in page 3, line 34, leave out paragraph (a).
§ Amendment No. 81, in page 3, line 34, after 'have', insert 'strict'.
Amendment No. 82, in page 3, line 35, leave out `certain' and insert
'risks as specified in the statement'.
§ Amendment No 83, in page 3, line 35, after `activities', insert 'specified in the statement'.
§ Amendment No. 166, in page 3, line 36, at end insert 'and'.
§ Amendment No. 85, in page 3, line 37, after 'take', insert 'strict'.
§ Amendment No. 86, in page 3, line 37, after first 'the', insert 'express terms of the'.
Amendment No. 87, in page 3, line 39, after 'risks', insert
`but only as expressed in the statement'.
§ Amendment No. 167, in page 3, line 39, leave out from 'involved' to the end of line 41.
Amendment No. 131, in page 3, line 39, at end insert
'that they have known of the risks which materialised and had voluntarily accepted ail, risks.'.
§ Amendment No. 92, in page 3, line 40, leave out paragraph (c).1653
Amendment No. 93, in page 3, line 40, leave out 'only uphold' and insert
'may take into account in'.
§ Amendment No. 94, in page 3, line 40, leave out `where' and insert 'whether'.
§ Amendment No. 96, in page 3 line 41, leave out `reckless' and insert 'careless'.
§ Amendment No. 95, in page 3 line 41, leave out `reckless'.
§ Amendment No. 168, in page 3, line 42, leave out subsection (7).
§ Amendment No. 97, in page 3, line 42, leave out 'shall not' and insert 'may'.
Amendment No. 98, in page 3, line 42, at end insert—
'(d) a court shall take the absence of a Statement of Inherent Risk into account in deciding whether a voluntary organisation or voluntary body is or has been personally or vicariously negligent.'.
Amendment No. 134, in page 3, line 46, at end insert—
'(9) In the event of a Statement of Inherent Risk relating to an activity or activities being proposed, no person shall engage in those activities who has not complied with subsection (5) above.'.
Amendment No. 135, in page 3, line 46, at end insert—
'(9) A Statement of Inherent Risk shall cease to have effect from the first anniversary of its preparation.'.
Amendment No. 136, in page 3, line 46, at end insert—
'(9) A Statement of Inherent Risk prepared under this section shall be reviewed at least annually.'.
Amendment No. 170, in title, line 1, leave out from `Make' to end of line 2 and insert
'provision as to the extent of liability in negligence in respect of volunteering and voluntary organisations'.
§ Mr. Brazier
I thank colleagues in all parts of the House for the hard work that has gone into this Bill, including the four Committee sittings. We have had some good volunteers on Ike Promotion of Volunteering Bill. The voices of support that the Bill has brought from across the adventure training, sport, recreation and play sectors have been greatly encouraging.
As I look at the large group of amendments and new clauses before us, I find it extremely flattering that the hon. Member for Hendon (Mr. Dismore) has found it necessary to table roughly 150 amendments and new clauses to stop the Bill—a number that is about the same as the number of hon. Members who signed the early-day motion supporting it. I do not think, however, that the scout masters, guide leaders and cadet instructors, and those struggling to organise clubs for everything from rugby to roller-skating, will take a charitable view.
The aim of new clause 29, which has been tabled by supporters of the Bill, is to offer the House the opportunity to vote on a much simpler, reduced version of the Bill that simply asks the courts to take account of inherent risks in adventure training, sport and play where participants seek to sue volunteers or voluntary organisations for alleged negligence. It also asks the courts to take account of inherent risk, without any of the certificates or paperwork that were objected to at 1654 length in Committee—although the paperwork implications would have been negligible in the original measure in relation to participants in the field of adventure training, sport and play. It asks the courts to take account of cases in which the participant—in the case of children, this will be parents—understood and had been made aware of any risks involved. Private Members' Bills can succeed only where there is consensus, as we all know.
§ Lawrie Quinn (Scarborough and Whitby) (Lab)
I am grateful to the hon. Gentleman for giving way on the point about consensus. Has he received any representations from the Association of Personal Injuries Lawyers with regard to this matter? It has certainly been in touch with me, and it has advised me in briefings that putting in place proper risk assessment and health and safety mechanisms before an activity is conducted will negate the possibilities of an accident occurring and perhaps leading to an appearance in court. That would be a far more positive way of taking forward the matter in hand than what he proposes.
§ Mr. Brazier
If I were feeling uncharitable, I would say that the Association of Personal Injuries Lawyers proves the old dictum that hell hath no fury like a vested interest masquerading as a principle. None the less, the hon. Gentleman makes a deeply serious point that I shall address at some length in a moment.
Private Members' Bills can succeed only where there is consensus. The amendments meet many of the objections raised to the original Bill. They include the abandonment of all paperwork, although the paperwork requirements would have been no more than most of the relevant organisations already have; the measure would simply have given the arrangements some legal force. The Bill's supporters hope that the House will find this much watered down measure—the legal advisers tell us that it would be a step forward none the less—acceptable.
Whether or not the House accepts the measure, the amendments at least ensure that it has the opportunity to address the substance of the issue. Fond as all Friday regulars are of the hon. Member for Hendon, it is much better that we spend this morning discussing the very grave issues that the Bill involves than five hours trailing through 140-something amendments.
§ Mr. Dismore
The hon. Gentleman has made two personal attacks on me in the first two minutes of his speech. I have not tabled my amendments merely for fun. They are substantive amendments—indeed, they would not have been selected otherwise—that point out the deep flaws in his Bill and the problems that arise from what he says. They deal with matters of principle, not merely matters of pedantry.
§ Mr. Brazier
We will debate that point. I am sorry that the hon. Member for Hendon interpreted my two references to him as attacks, because I think that I made them rather courteously.
The Bill and new clause 29 turn on one simple question of fact, and from that one question of fact stems one simple requirement for action. The issue of 1655 fact is that litigation is a real problem rather than a perceived problem. The steady growth in insurance premiums and the insurance companies' refusal to insure many events altogether reflects genuine appraisals by their legal advisers of the attitudes of the courts in recent years, rather than their pandering to urban myths. That is why we need action in the form of actual changes in the law, and not a working party for insurance or any of the dead ends into which the Government are trying to drive the world of adventure training, sport and play.
I addressed a conference on Tuesday where I was presented with many fresh examples of ridiculous judgments by the courts and costly out-of-court settlements, each of which further undermines the spirit of adventure in this country, prevents children and young people from learning about taking responsibility and managing risk, which are vital skills in later life, and denies young people the chance to enjoy themselves in a structured environment. Hon. Members who served in Committee have heard me raise many such examples.
A skipper was sued by an adult crew member who had hurt his leg putting out a fender, which I first did when I was seven years old, and the judge said that the skipper should have supervised that experienced adult. The parents of a guide successfully sued because their daughter slipped on a footpath, and the parents of another sued because their daughter was hurt on a slide in a playground. It seems that all the adventure training organisations have been sued as a result of children falling out of bunk beds. A kayak instructor was successfully sued after an accident when two teenagers deliberately disobeyed instructions given just a few seconds before. Sadly, the Minister gave the impression that her mind was closed to the evidence in Committee. As the examples were put to her, she kept repeating the mantra that the issue is a matter of perception.
Let me add just two more examples from Tuesday's conference, the first of which was a horrible tragedy. A scout group from the Manchester area were eating their picnic lunch before undertaking a guided tour of the Gaping Ghyll show cave. One of the scouts noticed a small cave across a stream and asked the scout leader for permission to explore it. The leader refused permission, pointing out that the cave could be dangerous and that they had neither the equipment nor the expertise to explore it. The scout was accompanied by his father, who had been encouraged to join the group. The scout went out of earshot of the instructor and said to his dad that he wanted to go into the cave. His father said, -Okay, let's go", provided his son with a cigarette lighter and accompanied him into the cave, where the child plunged over a precipice to his death.
Hon. Members know that I was largely responsible for a fatal accident, and I can imagine what that father went through, but surely it is a total travesty of justice that the scout leader, who did everything right, should be called into a court of law, where the judge declared him negligent on the ground that he failed to assume that the father would not understand risks in the countryside because the father came from an urban centre and that he failed forcibly to prevent the father from taking his son into the cave.
1656 I shall cite a much less grave case. A scout campsite had created a water slide, which is something that most of us have done for our kids. One puts a long piece of plastic down on the ground and pours water and, if one feels a bit excited, a bit of squeezy on it. The supervising scout masters explained that children should not run or dive on to the sheet, and they even provided lightweight plastic helmets for the children. How much further can one go? A youth leader with a group of non-scout children asked to have a go. While the scout masters were supervising the children, the youth leader grabbed a helmet that did not fit him and plunged head first down the slide, injuring himself in the process. A judge held that the scouts should have made sure that nobody managed to get down that slide with an ill-fitting helmet.
At Tuesday's conference, the lawyers and insurance specialists were staggered that a Minister of the Crown, or indeed any responsible person, could believe that the problem is perception rather than the reality of those ghastly judgments. Indeed, they made the point that they are caught between paying out money from hard-pressed volunteer funds to undeserving cases or going to court. In court, volunteers are bullied by lawyers and are sometimes declared negligent, so they leave court feeling like criminals. Most voluntary organisations are strapped for cash, so they do not go to court on legal advice and end up paying out of court, so the number of cases is declining. The Minister has pointed to that decline as evidence that the culture has become less litigious.
On 20 April, the Secretary of State for Education and Skills was asked about teachers' fears that they would fall victim to the compensation culture. The National Association of Schoolmasters Union of Women Teachers recommends that its members should never take pupils on school trips again, and the right hon. Gentleman told its delegates:I want to offer today, very explicitly and directly in the context of this broader curriculum, consultations about the concerns you are expressing".He was right to do so. The Secretary of State for Culture, Media and Sport went further in The Observer on 30 May:It's absolutely clear that schools are being deterred from taking children on trips, either away in this country or abroad, because they fear the consequences of compensation if there's an accident.That is why we need a change in the law.
The Government's solutions are based around ever-increasing levels of safety. The problem is that risk is an essential ingredient in such areas, and so is the delegation of responsibility to older young people from time to time—it is impossible to delegate responsibility without incurring the risk of an unsupervised accident. For organisations that want to provide opportunities for children and young people, the approach the Minister advocates offers a vanilla world. The spirit of adventure led the Scout Association, the Guide Association, the Royal Aero Club, the English Outdoor Council, which is responsible for a large proportion of school trips, and London Youth to sign a letter to The Times supporting the Bill. Unlike the groups in the letter quoted by the hon. Member for Hendon, those organisations are all involved in providing sport, adventure training and recreation for children.
1657 A mass of regional organisations has contacted me to express support for the Bill.
§ Lawrie Quinn
The hon. Gentleman is being generous in giving way. He may recall that I have spent some time in this House trying to promote health and safety issues. In 2002, Sport England produced a document called, "Sports volunteering in England". Can he point to the evidence in that document that supports his new clause?
§ Mr. Brazier
I shall be delighted to do so—the hon. Gentleman has anticipated me by a line or two. I shall quote a document prepared about one year later by Sport England and the Central Council of Physical Recreation, which he can download from the website. The document identifies eight reasons why people choose not to volunteer. The reasons include the growth in bureaucracy, family pressures, and pressures at work, but the top reason is the blame culture and the fear of litigation.
Many children cannot try adventure training because of the shortage of instructors—80,000 children would like to be scouts or guides—which may mean that they degenerate into couch potatoes. We are the third worst country in the developed world for obesity. Of course, more adventurous children will not sit on the couch doing nothing while they miss out on safe, structured activities. They will be out on the streets finding ways to amuse themselves that are a great deal less safe and, in some cases, antisocial.
Is the Minister still convinced that this is the stuff of the imagination of the Bill's supporters? Perhaps a final word from the Richmond canoe club will help:
thank you for your initiative in bringing this Bill forward…the changes you propose will allowvolunteer instructors
to continue this sterling work with much greater peace of mind".Whatever the Minister and the relatively small number of other opponents of the Bill believe, too many adults are deterred from volunteering by the threat of litigation. The message that the scouts gave me at the conference that their legal advisers organised for me on Tuesday is echoed across all such organisations. If the Government, through their agent, the hon. Member for Hendon, kill my Bill today, the campaign for a change in our law—
§ Mr. Dismore
I very much resent the suggestion that I am doing this at the instigation of the Government. I would have been here to speak against the Bill on Second Reading had I been able to do so. I feel very strongly about this issue and, as my hon. Friend the Minister may confirm later, I would have been here irrespective of whether the Government supported the Bill. I want to speak against it and Fight it because it is ill-conceived and a disgrace.
§ Mr. Brazier
I have made no personal attack on the hon. Gentleman, but as he has made those remarks, I should draw the House's attention to this simple fact: he 1658 can speak for himself as a lawyer. but he was present in this building on the day of Second Reading and, indeed, showed his face in the Chamber twice, but chose not to speak.
§ Madam Deputy Speaker
Order. May I ask all hon. Members to address their remarks to the new clause that is under consideration?
§ Mr. Brazier
I am delighted to do so, Madam Deputy Speaker. I did not choose to raise the temperature of the debate.
The message from the volunteer organisations involved in sport and adventure training is very clear. If the Bill is killed today, the campaign for a change in our law on negligence—not a campaign against health and safety or to change the criminal law, but simply to restore the level of proof for negligence in sport and adventure training—will go on. It will go on until eventually the change in the law that most people know is needed takes place.
§ Mr. Frank Dobson (Holborn and St. Pancras) (Lab)
I support the new clause and the consequential amendments.
It is worth saying, as the hon. Member for Canterbury (Mr. Brazier) did, that our new clause is intended to deal with legitimate criticisms levelled at the Bill on Second Reading and in Committee by getting rid of any additional bureaucracy that might have been involved. It would also get rid of the concept of reckless disregard, which we accept may be going a little too far.
I have talked to various constitutional lawyers of some distinction, and it is evident that new clause 29 represents a fairly novel concept in English law—it is a declaratory measure. In other words, it declares what the law should be. Those who say that there is no problem should not object to it, because it states the law as they say that it already is.
§ Mr. Dobson
My hon. Friend does not agree, but I am at a loss as to how he thinks that the new clause would change the law or reduce the concept of negligence.
§ Mr. Dobson
No, I will get on, so long as my hon. Friend the Member for Hendon (Mr. Dismore) does not want to interfere.
As far as we are concerned, the new clause changes the law to what we would like it to be, while for those who think that the present situation is acceptable, it states the law as they claim that it already is. I therefore cannot see why any Member should speak or vote against it.
It is no good saying that there is not a problem. Some people say, "Oh no, there isn't", but we say, "Oh yes, there is." There may not seem to be a problem if one is a distinguished member of the Better Regulation Task Force or some such outfit, but if one is a scout leader, an adventure trainer, a teacher contemplating taking 1659 awkward children on school trips to relatively dangerous places, a sports organiser, or someone trying to run a playground, there certainly is a problem. It is not just a matter of perception.
To add topicality to my remarks, let me say that if something goes wrong for one of those people, they will not face a kindly Robin Butler-style inquiry that might conclude that things went wrong but nobody is to blame: they will face court action against themselves personally or against the organisation to which they belong.
If, as some people claim, there is no increase in this problem, why are insurance premiums soaring out of sight for volunteer organisations? [Interruption.] It may well be that some insurance companies are greedy—I do not know. Perhaps the Better Regulation Task Force should look into regulating insurance premiums, although that is a rather socialistic idea that may not go down too well with Conservative Members. The increase in premiums is clear evidence that increased costs are faced by organisations that try to provide volunteer services for their fellow citizens.
I was not originally a sponsor of the Bill, but it caught my attention because the hon. Member for Canterbury seemed to be trying to do the right thing. I say, with great respect for him, that he has never suggested that there was anything perfect about the wording that he proposed, and he has been happy to accept all sorts of amendments, even to the point of changing the whole damn Bill so long as it does what people want.
Our proposal is not intended, and never has been, to protect people who are negligent or disregard the safety of those for whom they are responsible. Its intention is to offer clear protection to people who take reasonable care and exercise reasonable skill, and to ensure that the courts recognise that. Some lawyers say that they already do recognise it—I think that that was the argument advanced by the organisation mentioned by my hon. Friend the Member for Scarborough and Whitby (Lawrie Quinn). We say that the law and the courts—
§ Mr. Dobson
Let me just finish my sentence. We say that the law and the courts must also require that some activities involve an inherent risk over and above simply walking along the pavement.
§ Lawrie Quinn
I have great respect for my right hon. Friend, as he knows, but I am sure that he has taken a look at the Health and Safety at Work, etc. Act 1974, and I ask whether he sees any potential conflict with that legislation in terms of negligence claims being stirred up in a different, ill-thought-out way, and does he accept that that might deter more people from volunteering instead of achieving the laudable aims of the hon. Member for Canterbury?
§ Mr. Dobson
Our new clause says that the person concerned should take reasonable care and exercise reasonable skill against the background of some inherent risk. As I understand it, that is one of the 1660 principles that applies to health and safety at work legislation. Obviously, a steelworks is slightly more risky than the office of an MP in the House of Commons, and that is recognised in law and in practice.
The other point that is causing huge difficulty is the personal exposure of people who are trying to provide voluntary services. It is difficult enough for them to find the time, make the effort and put up with the pressures and stresses of looking after young people. They do not want a lot of extra pressures slung on top of them by lawyers who urge parents to go to law.
§ Dr. Julian Lewis (New Forest, East) (Con)
In support of the right hon. Gentleman's point, I should like to quote a letter that the commanding officer at the sea cadet unit in Southampton sent to his Member of Parliament. He wrote:I am ever conscious of the increasing amount of bureaucracy and the fear of being taken to court by a disaffected young person or their parents/guardian. I have tried to encourage other local people in supporting the cadets but they too are reluctant to commit themselves because of the fear of litigation.
§ Mr. Dobson
I agree. That view is commonly held among a range of people who are trying voluntarily to help young people. In my view, our proposals do not go quite far enough. If we are to encourage young people to take responsibility, I am not sure whether our proposal provides the cover that we need. For example, let us suppose that someone teaches a person canoeing in a two-person canoe, the supervisor goes out with the young person in the canoe two or three times, and the young person appears to behave fairly responsibly and have a grip on the technique and so on. If the person teaching says, "Okay then, give it a go by yourself, I am not sure whether that would be construed as exercising reasonable care or skill under our proposal. I should like the encouragement of responsibility in young people, which is automatically a discouragement of irresponsibility. to be included. However, perhaps we cannot do that today.
Last year, at the request of the Secretary of State for Culture, Media and Sport, I carried out a review of play provision throughout the country. We visited every part of England and the devolved Administrations undertook consultations in Scotland, Wales and Northern Ireland. I cannot speak for those three parts of the consultation but in every part of the country that I visited, people who were responsible for providing play expressed concern about the problem that we are considering.
We concluded that far too many children have nowhere safe to play. They either do not get out to play or they play in places where they are not safe. They are either deprived of the pleasure and stimulation of playing with their friends or they put themselves in danger. That is bad for them and for their parents' peace of mind. We recognise that play cannot be made risk-free. Learning to judge risk is one of the benefits that children get from May. Generations of children have survived bumps and scrapes. Children have not changed; society has. That hinders children's play. The blame culture, the increase in litigation and consequent 1661 rises in the cost of insuring playgrounds make life more expensive and difficult for voluntary organisations and councils. I said at the time:
It is my personal view that Parliament needs to give special statutory protection to play organisationsand perhaps
to help with their insurance problem.That is why I got involved with the Bill.
It is no good saying that the problem does not exist, and that it is a modern urban myth or perception and not reality. I say in parenthesis that it is my understanding that part of the new Labour creed is that tackling reality is sometimes not sufficient—the perception must be tackled, too. We are trying to tackle the reality in the hope that it will change the perception. Nothing is currently changing the perception. The debate or something from the Better Regulation Task Force is unlikely to get much public attention whereas the next ludicrous court case will. Perhaps we would do better to listen more closely to the people who are trying to provide services to their local communities than to the Better Regulation Task Force, which does not perceive a problem, presumably because its members are not in much danger when they sit around their table, discussing the issue.
We have received representations from charity groups. I understand from some groups that representations against the Bill were helped by a few judicious telephone calls from, shall we say, one or two headquarters. One body, which purported to represent a group of voluntary organisations, wrote to me, and I rang the boss who had signed the letter to ask whether he had consulted the organisations that he represented. He replied, "Ah no, but I'm going to check with them now." That falls within no definition of consultation.
One of the worries seemed to be that the Bill applied only to volunteering, not to the public sector or possibly the commercial sector, and that that would somehow undermine the reputation and concept of volunteering and voluntary organisations and suggest that they did not have professional standards. I appreciate that everyone is trying to raise the standard of performance by volunteers but I believe that juxtaposing "volunteering" and "professionalism" makes for a bit of an oxymoron. We shall never get away from that unless we have "professional volunteers" in future. Perhaps there are one or two around nowadays.
The hon. Member for Canterbury mentioned a couple of spectacular cases. In some of the cases that have reached the Court of Appeal or the House of Lords, the final court has said, "We agree. This should not have come to court," and the claim has be en rejected. That is a big deal for those involved in the case or those who feel that they might be involved in such a case. Who wants to go through several years of turmoil and stress, huge amounts of time, trouble and possibly money to prove that they acted reasonably and exercised reasonable skill? We will allow that to happen if we do not do something to change the law. In an interview or a newspaper article, Lord Phillips of Worth Matravers, the Master of the Rolls, broadly said that the matter needs to be clarified. We are trying to clarify the law.
The Bill offers protection against recklessness by people in supervisory positions. It would punish or allow for the punishment of people who do not take 1662 reasonable care or exercise reasonable skill. It would protect those in the volunteers' care and the volunteers. Whether we are considering reality or perception, we owe it to thousands of volunteers throughout the country to change the law. We believe that it needs changing; lawyers say that it simply needs clarifying. Our proposal clarifies the law, does not increase bureaucracy and should be better for everybody. I do not understand why it cannot be accepted. If the Government have a few minor worries about the wording, there are plenty of lawyers in the Lords to make a few amendments there.
§ Mr. John Burnett (Torridge and West Devon) (LD)
I am delighted to follow the right hon. Member for Holborn and St. Pancras (Mr. Dobson), but I hope that he will not mind me correcting him on one small detail. He said that lawyers were against the Bill, but that is not entirely true. This lawyer is a sponsor of the Bill and delighted to be so. I hasten to add that my knowledge of personal injury matters is very limited. I do not practise as a lawyer now, and I was a tax, company and commercial specialist when I did. Nevertheless, I am delighted to sponsor the Bill.
On the general principle of the new clause, it is right to put it to the House that we are not asking for a free-for-all—far from it. The new clause makes it absolutely plain that volunteers must take reasonable care, exercise reasonable skill and be properly trained. I pay tribute to the millions of people in all our constituencies who devote enormous time to assisting young people in adventure training who seek to advance their skills and to foster the spirit of adventure. Such activities are crucial because, without them, young people will soon turn to other, socially unacceptable activities.
I want to say a few words about the threat of litigation and to remind the Minister of something that she said in Committee on 12 May 2004 in response to interventions that I made on her. I believe that she is seized of the fact that insurance premiums have risen substantially, and that that is significantly inhibiting the activities of volunteers. Why is that happening? Various reasons have been suggested, not least the great extension in the Access to Justice Act 1999 of no win, no fee, or conditional fee agreements, in which personal injury lawyers take a hunk of the damages. Those are not quite the same as the contingency fee arrangements in the United States, but they certainly give lawyers a vested interest in the outcome of the litigation.
Further reasons for the huge increase in the cost of insurance are, as I believe the Minister also conceded, the threat of litigation, the time it takes and the fact that damages are so substantial, especially in cases where one would have assumed that an inherent risk had been accepted, proper skill exercised and reasonable care taken. We discussed a series of cases in that regard.
We also discussed the number of claims being made. That involves not only the claims made in court but those made to insurance companies. In response to a question in Committee, the Minister said:The report showed that accident claims made to insurers rose by 0.2 per cent. in the most recent available year."—[Official Report, Standing Committee C, 12 May 2004; c. 54.]That is a small amount, but it is a rise from a very high base indeed. The Minister looks surprised, but I am quoting what she said in Committee.
1663 Unfortunately, we live in a risk-averse culture and a claim culture, which is undermining the ability of children to enjoy themselves and to learn to assess risk by pursuing adventure training. The Bill is not a let-out; it is not going to create a free-for-all or exculpate people who do not exercise due care or reasonable skill. Those people will still get into real problems with the courts. The Bill seeks to promote volunteering, and to enable people who are doing their best as volunteers to assist young people.
§ Lawrie Quinn
The hon. Gentleman and I have served for many hours on various Committees over the years, and his learned position on these matters is well known. As a sponsor of the Bill and a supporter of the new clause, will he help me with regard to the impact of a possible appeal to the European Court? As I understand it, the Joint Committee on Human Rights reviewed the Bill in its original form, and concluded that it was not compliant with the European convention on human rights, although the new clause may make amends for that. If the legislation were to go through, would it create the possibility of prolonged litigation going through the courts, ultimately ending up in Europe?
§ Mr. Burnett
I do not believe that any Bill is competent to oust the jurisdiction of the European Court. If we were debating European matters, I might have something to say about that. Nevertheless, it is always open to litigants to appeal further on the basis of what we have drawn into the law of this land, namely the European convention on human rights. People can now plead that at stage one, rather than having to go to in Strasbourg after having exhausted their right of appeal in the House of Lords, so I do not entirely follow the hon. Gentleman's point. It is always open to litigants to plead the human rights convention.
There are significant problems in relation to volunteering. The Members of Parliament who have sponsored the Bill have been inundated with correspondence saying that people cannot function further and are inhibited from doing what they have done for years. That is undermining enormously the efforts of many respectable, hard-working people to advance the cause of young people. As I said earlier, if young people do not have socially acceptable pastimes to pursue, they will soon turn to socially unacceptable pastimes, much to the disadvantage of themselves and of society.
§ Kate Hoey (Vauxhall) (Lab)
We had extremely wide-ranging discussions in Committee, and I felt that we had sorted out a lot of the difficulties that we encountered. The Minister seemed reasonably keen, on the whole, to see the Bill make progress, while understandably wanting to ensure that it was as tight as possible. I am sorry that this new clause has had to be tabled, but I fully support it. I share with my right hon. Friend the Member for Holborn and St. Pancras (Mr. Dobson) the view that perhaps it does not go far enough, but I sincerely feel that, given the nature of this place and of private Members' Bills, it offers a way forward that will send a signal to the country and to those volunteers 1664 whom we are so desperately keen to support that Parliament has realised that there is a real problem and that we need to tackle it.
I hope that the new clause goes through. It is very important, because some people continue to say that there is no problem and that this is all a question of perception. I do not know who those people talk to, but those who say that there is no problem cannot spend much time at the coal face—if that is the right way to put it—talking to people who are involved in volunteering activities.
Wherever we go. be it a sporting or recreational activity, or guiding, scouting or another uniformed activity, the first thing that people say is how increasingly difficult it is to get volunteers to come forward. The reason is clear: they know that things are not as they were when I was taking young people on skiing or outward bound trips, which involved going off into the Brecon Beacons and camping overnight.
We took all reasonable precautions before we went and planned things very carefully. We worried a little in those days, but never about what would happen if anyone was hurt, because part of the experience of those young people on expeditions or skiing trips doing all the things that they wanted to do was to allow them the opportunity to be semi-independent but within a comforting framework.
We had mishap. I vividly remember one young person in my company skiing over the parapet of a slope after going too near to it and breaking her leg. She was very badly injured. Her parents were involved, as were our insurers, but she, did not take us to court and in no way did her parents blame us. Now, society has changed and we therefore have to accept that, in response, we must look at how the law works.
The law is not working, I believe, in a way that is fair to the people who have done their best, taken all precautions and not been negligent. As my right hon. Friend the Member for Holborn and St. Pancras said, the stress involved with the length of time for which legal proceedings hang over people is dreadful. It can stop them, for the rest of their lives, wanting to be involved in any volunteering activity.
The new clause would send out a message to the judges and the courts that they should take into account what has gone on before the mishap and what reasonable precautions were taken so as to get away from the idea that people who take action will always win—in other words, that there is always somebody to blame.
The reality is that there is not always somebody to blame when something goes wrong. Quite often, it is a misfortune that no me could possibly have foreseen or done anything to prevent. That should be the end of the matter. I cannot understand why there are now people who want continually to push and push and push to make a legal action out of anything that has happened. We should go ahead with the new clause.
I spoke recently at a conference of football's Referees Association in Wales, and time and again I heard from referees who referee at all levels of the game, especially junior level, how difficult it now is for them to find people who want to be referees. Part of that is to do with the behaviour of young people and the hassle referees get from many parents on the touchline. Underlying an 1665 awful lot of those comments was the fact that people had seen, heard and even experienced in some cases what happens when something goes wrong on the field. That is making a difference to their expectations.
We need to be clear about the fact that the people who help and support every young person who goes out to take part in an activity have taken all reasonable precautions. How can we leave things as they are? For example, the fact that the cost of insurance is increasing is coming through more and more as smaller clubs and groups find it impossible to get the funding to insure their activity. Some underwriters have decided to leave the business.
I think that everyone agrees that something has to be done. I would have liked the Government to take these measures, but they have an opportunity to show that they have listened to this serious, all party debate on the issue that has involved many people who have put in a huge amount of work. The work has been done and the Government should support the Bill. Then, although there might be technical difficulties, they could take it forward knowing that there is full support in the House from all those who have considered it carefully.
This is the way forward and the Minister has the opportunity to go against, perhaps, what some of her officials have been saying. I know that there have been disagreements within the Government. Some Ministers in some Departments, particularly the Department for Education and Skills, strongly support the Bill. I hope that this Minister and this Department will deal with these matters by saying that, although things have been difficult and this has not been tried before, the Bill is the first step in ensuring the long-term future of volunteering and the long-term opportunity for our young people to engage in physical and recreational activities that challenge them and give them the independence that we all want them to have. If we do not take the Bill forward today, we will miss a hugely important opportunity.
§ Dr. Julian Lewis
It is a great pleasure to follow the hon. Member for Vauxhall (Kate Hoey), primarily because every word she said reeked of common sense, as is usual when she makes a contribution. This is no exception. I believe that the absence of common sense among certain members of the judiciary, coupled with greed among certain members of the legal profession, have made it necessary for my hon. Friend the Member for Canterbury (Mr. Brazier) to introduce such a measure.
To this day, I have a healthy respect for glass doors because, when I was about seven and a member of a youth group, I had an accident involving a collision with one. I carry the scars to this day. It never crossed my mind that that accident was anybody's fault but my own, yet if it happened to somebody today I have no doubt that there would be a huge temptation for that child and the parents to see what could be done to extract a large sum from the group concerned.
That in itself would not matter the judiciary took a robust, common-sense and reasonable view of how it ought to treat cases, without merit, of that sort; but it does not. There is a separation of powers, as we all 1666 know, between this Chamber and the judiciary, so I will not pursue that line of argument further other than to say that one sometimes wonders what sort of world some judges inhabit.
I have only a single extra point to add to the debate: when one is cocooned as a child, one is living in an artificial world, but when one becomes an adult one is living in the real world. The question that parents and youth group leaders have to decide—in their different ways, their different spheres and their different contexts—is how much cocooning must be done and how much preparation there must be for the real world.
I say to those who believe that children must not be exposed to any significant risk that they should ask themselves a single simple question, which is, "What sort of favour are you doing for that child, who will eventually, whether you like it or not, have to go out into the real world, face real risks and live with real consequences?" The more those people delay a child having to face up to the consequences of his own actions, the more they expose that child to the risk of having to live with the much more serious consequences of his actions when he becomes an adult.
This problem is being seen not only in relation to children, but even in relation to something called the working at height directive, which was dreamed up in Europe for the perfectly good reason that people working in industry on high buildings needed maximum protection. In this country, however, there are moves to gold-plate that by saying that people engaged in mountaineering or caving must have double the number of ropes and ladders. As usual, the road to hell is paved with good intentions, and ideas that are meant to promote safety will ultimately make the activities more dangerous.
I do not wish to stray further from the new clause other than to observe that my hon. Friend the Member for Canterbury has achieved a coup in securing the valued support of right hon. and hon. Labour and Liberal Democrat Members who have made a convincing case. If the Bill and new clause are judged on their merits, there should be no doubt that they will proceed.
§ Mr. David Stewart (Inverness, East, Nairn and Lochaber) (Lab)
May I start by congratulating the hon. Member for Canterbury (Mr. Brazier) on his initiative in bringing forward this Bill?
In general terms, I am supportive of many aspects of it. Like many right hon. and hon. Members today, I want to congratulate the thousands of volunteers across the country who give tremendous support to our social and sporting organisations. I can also see lots of links with other aspects. One key aspect involving sport is the fight against obesity across society, which is one of the most worrying factors in health care today. I declare an interest as secretary of the all-party group on diabetes. There is a big link between obesity and diabetes, which worries me greatly. Without straying too far from the new clause, there are tremendous worries about the 1.4 million people in this country who are diabetic. Perhaps even more worryingly, there are more than 1 million people who have diabetes and who are not diagnosed. Volunteer activities are connected with that because sport plays a great role in the fight against obesity.
1667 Many communities such as mine, which is a widespread highlands seat, are very close-knit, and voluntary groups and volunteers are key to that. I want to give a few examples of my experience of growing up, in which voluntary work was extremely important. I know that many right hon. and hon. Members have had similar experiences of volunteering, which is what makes me enthusiastic about the new clause and the Bill.
My first experience as a volunteer was with Citizens Advice, an excellent organisation, and I spent many Friday evenings training in welfare rights so that I could volunteer, in addition to my job in social work, to help ordinary people—
§ Lawrie Quinn
On the fundamental issue of training, like my hon. Friend, I have been involved in volunteer activities. Training and realising a level of competency before undertaking "management" activity as a volunteer leader is crucial. How far is he concerned that this new clause might dilute the importance of making sure that volunteers have high-quality training, so that whatever activity is undertaken is done as safely as possible, recognising all the risks that might occur, in line with health and safety legislation and so on?
§ Mr. Stewart
My hon. Friend makes an important point. I have always been a great believer that although volunteers are not paid, they are professional—my right hon. Friend the Member for Holborn and St. Pancras (Mr. Dobson) made a similar point earlier. Of course, there is a duty of care on any organisation to make sure that volunteers are properly trained, and that health and safety issues are highlighted. What we cannot do, however, is to take away all risk in society. Some responsibility must be put on individuals, too. My hon. Friend makes a good point.
The other organisation in which I was involved as a volunteer for many years was the Samaritans, of which Members will be aware. Thinking back to my youth, I remember calls at 5 o'clock in the morning from the lonely, the suicidal and those who had given up hope. That experience encouraged me to become a social worker many years later. That organisation was another good example of excellent dedication and training, and of a good group of young people and adults who wanted to put something back into society to try to support other people who have great problems.
Like many right hon. Member and hon. Members, I have a variety of excellent voluntary organisations in my constituency. Time does not allow me to go though all of them, but I shall mention one: the Lochaber transport forum. Those who have knowledge of the highlands will know that Lochaber is a widespread area, with beautiful mountains and scenery, but that there are also great problems with isolation. That organisation allows volunteer drivers to go out and support the elderly, single parents, and those with mental health problems, to ensure that they can go to doctors, shops and so on. All that is done by volunteers and with minimal funds.
I suggest that three groups of people are helped by and benefit from volunteering. When taken together, they constitute the whole of society, which is my point and the point behind this Bill. First, the volunteers 1668 benefit from the experience: they have the satisfaction of knowing that they are investing in the lives of others and helping them. They get a sense of pride and achievement and gain new skills—we should not forget that. In some cases, that helps then future career development. In my case, although it was not in my mind at the time, voluntary work stimulated my interest in going into full-time social work later.
Volunteering is good not only for the volunteers but for organisations. They will be able to function correctly and efficiently, which means being able to deliver services to the public, which is very important. A larger organisation such as the British Heart Foundation relies on 10,000 volunteers across the UK for its valuable work in tackling heart disease.
Perhaps the widest group to benefit, however, are the communities themselves, and especially the most disadvantaged who are cared for and who have their needs met. Such communities include schools, hospitals and social services. Those are the types of communities in which we all want to live—communities of carers. That is why volunterring is so important, and it is imperative that the Government recognise the importance of the voluntary sector and promote volunteering. I welcome my right hon. Friend the Chancellor's Budget announcement last year on the setting up of a commission to draw up plans for a national youth volunteering strategy. That demonstrates the Government's commitment to consider the wider issues of volunteering, for young, old, rich and poor.
I was also encouraged to see that the number of volunteers, if we take the English example, has increased dramatically between 2001 and 2003. I therefore welcome the Bill. Of course, it is important that volunteers carry out activities without undue fear of blame or litigation. I agree that there are arguments about the "age of compensation" culture, although there are some opposing views. For example, Department for Work and Pensions statistics show that, between 2001 and 2003, disease claims fell by 26 per cent., employer liability claims fell by 16 per cent., and the number of solicitors undertaking personal injury work fell by 7 per cent. I am sure that some hon. Members may wish to comment on that.
I also realise that there have been some difficult test cases involving volunteering, to which some hon. Members have referred. For example, one of the crunch cases was Dowling v. the London borough of Barnet and Bowman's farm Members may be aware that that multi-million pound damages case involved a pupil who suffered severe brain damage after contracting E. coli on a school trip to a farm. There are two sides to the compensation culture. On one side, the statistics show a reduction, but on the other, there have been some test cases in terms of liability, on which I am sure that Members will comment, affecting both schools and the volunteers involved.
I have a couple of questions that can perhaps be answered later. First, does the Bill justify a certain amount of compromise in terms of protecting volunteers from litigation and ensuring that attention is paid to health and safety at all times? Secondly, should 1669 we not bear it in mind that the real problem may not be the level of litigation but the fear of it among voluntary organisations?
It is important to keep volunteering in the public eye. I strongly support the construction of the Bill, and I also support the work of volunteers throughout the United Kingdom. I believe that the promotion of volunteers, with no compromise on duty of care and safety standards, is crucial. In general, I am in favour of the Bill.
§ Mr, Owen Paterson (North Shropshire) (Con)
I heartily congratulate my hon. Friend the Member for Canterbury (Mr. Brazier) on doing so well in the ballot, and on an admirable Bill. Remarkably, my hon. Friend has created what might be described as a common-sense coalition. He speaks for 22 million volunteers—I think that is what he said on Second Reading—who provide a wonderful service throughout the country, giving young people the opportunity to have experiences that they would not be able to have if those volunteers did not give their time.
The right hon. Member for Holborn and St. Pancras (Mr. Dobson) rightly said that children need to learn about risk. He was also right in saying that depriving children of play areas and opportunities to play is damaging in the long term. For one thing, they are likely to resort to more dangerous places; for another, they must learn how to cope with risk. As the right hon. Gentleman said, neither the Bill nor the new clause endorses recklessness. Both merely suggest that reasonable care and reasonable skill should be exercised.
Another member of the common-sense coalition, the hon. Member for Torridge and West Devon (Mr. Burnett) mentioned the enormous increase in insurance. I have encountered that in my constituency. People have written to me about the problem of taking part in certain activities. I should perhaps declare an interest: I am president of the Ellesmere cadets. In my rural constituency, many people undertake activities that are potentially risky. Yesterday the headmaster of Oswestry school sent an e-mail to my hon. Friend the Member for Canterbury saying:
I fear that the amount of paperwork now needed to organise even the most basic sort of outing or trip (consent forms, medical forms, risk assessments and so on) would be likely to put off even the keenest of staff. Moreover, the fear of litigation should anything go wrong is likely to strangle any form of activity at birth (especially those which have any degree of risk). Thankfully, in my own school teachers are still prepared to make the effort, but at considerable expense to their time and energy.That headmaster, Mr. Stockdale, sent me a note yesterday. He wrote:If you are able to give it—the Bill—your support I would encourage you to do so. It would not directly affect the work of schools but if successful would bring a degree of commonsense back to an area in which it is sadly lacking.I recently came across a ludicrous example of the disappearance of common sense. When I first entered the House—my constituency being 200 miles away—I was struck by the fact that nearly all school children visiting the Houses of Parliament came from London and the south. I make a point of trying to visit local 1670 schools frequently: I try to do so every Friday, although I do not always succeed. I always try to encourage headmasters and other teachers to bring groups down here. I have had some modest success, but I was astonished the other day when I invited a headmaster to bring his pupils down and he hesitated because of the difficulties involved in bringing them to meet their Member of Parliament—risk assessments, and all the other paperwork. That shows just how far the current excessively risk-averse culture has gone.
§ Mr. Brazier
My hon. Friend has just demonstrated why the amount of litigation is falling. Throughout the country and across a range of activities, people are abandoning activities that have led to litigation in past years.
§ Dr. Julian Lewis
Applying the principle of reductio ad absurdum, can my hon. Friend envisage circumstances in which—heaven forbid—a party of children came to the House of Commons and a terrorist attack took place? The headmaster would end up being sued for not having predicted the degree of risk that the party might face.
§ Mr. Paterson
My hon. Friend shows extraordinary perception. The day on which I did entertain a group of children here was the day on which an object was thrown at the Prime Minister. That brings me to the point made by the hon. Member for Vauxhall (Kate Hoey): children must learn about risk.
§ Mr. Dismore
These are some of the myths that develop in personal injury law. If someone were injured in such circumstances, the answer would be a straightforward claim under the criminal injuries compensation scheme. There would be no question of suing anyone else, as any decent personal injury lawyer would tell the hon. Gentleman.
§ Mr. Paterson
Oh dear! It is obvious that the hon. Gentleman is not going to join our common-sense coalition. The point is that the culture is putting people off.
I hope that the Minister will give a glowing endorsement of all those people who volunteer. I hope that he appreciates the sterling work that they do, and recognises that children need to learn about risk.
Let me say to the hon. Member for Vauxhall that there are times when no one is to blame. It is cruel to let children grow up thinking that they can always blame someone. I hope that the Minister will support the Bill, and will help to give it a fair passage so that our common-sense coalition wins.
§ Mr. Dismore
Let me begin by declaring an interest. As my entry in the Register of Members' Interests states, I have been a personal injury lawyer for some 25 years. I am also a member of the Association of Personal Injury Lawyers, and have been a member of its executive committee. I am not taking any cases at present, because I am busy doing other things. This is more than a full-time job.
1671 I have observed a good deal of prejudice against lawyers during the debate. [Laughter.]
§ Mr. Dismore
Members may scoff, including my right hon. Friend the Member for Holborn and St. Pancras (Mr. Dobson). I well remember dealing with a big case in his constituency involving the King's Cross fire. I was very proud of the work that my colleagues and I did to help secure justice for the victims and their families following that appalling tragedy.
As far as I am aware, no one has stood up for the rights of victims today or in our previous debates on the Bill. No one has spoken for those who are injured, maimed or killed. It is my job to do that today, as throughout my professional life I have stood up for people who have been injured or killed through the fault of others.
§ Mr. Burnett
I think we have all been standing up for the victims. New clause 29 makes it clear that anyone who wishes to exculpate themselves from liability must take "reasonable care" and exercise "reasonable skill".
§ Mr. Dismore
The hon. Gentleman said earlier that he might be a lawyer, but was not a personal injury law specialist. That was illustrated by the fact that he did not understand the distinction between quantum and liability. He has clearly not approached the new clause as a personal injury lawyer would. I intend to construe it as a personal injury law specialist would, and explain why it is counter-intuitive and would create more rather than less litigation.
§ Mr. Dobson
If my hon. Friend is so keen to protect these individuals' interests, presumably he welcomes the new clause on the ground that it will give them more scope for compensation. That is the logic of his position.
§ Mr. Dismore
No, of course it is not. My position is simple: the law as it stands is pretty much as it should be. On the point made earlier by my right hon. Friend the Member for Holborn and St. Pancras, the Bill does not preserve the existing law; in fact, it significantly reduces the rights of people who are injured and maimed. The Bill is neither more nor less than a licence negligently to kill, maim and injure children, and to do so with impunity.
§ Mr. Dismore
I do agree with a lot of the views that have been expressed so far today. My hon. Friend the Member for Inverness, East, Nairn and Lochaber (Mr. Stewart) described very well the important role that volunteers and volunteering organisations play in our society, and I endorse everything that he said in that 1672 regard. Believe it or not, I also agree with a lot of what the hon. Member for New Forest, East (Dr. Lewis) said. He said that the judiciary should exercise more common sense, and I tend to agree, but in fact they often do so. For every case that can be cited in which compensation was dubiously awarded, I can cite a case in which compensation was not awarded but perhaps should have been.
The basic point is that the judiciary are remarkably good at sorting the wheat from the chaff in such cases. The fact remains that we hear about some of the more outlandish cases because part of the tabloid agenda is to hype up the concept of having a go at lawyers. However, there are also cases of people being injured but no compensation being payable, and in such cases the tabloids are equally willing to jump into that other camp, when it suits them, in order to sell newspapers.
§ Dr. Julian Lewis
I find the hon. Gentleman's logic a little hard to follow. He said that for every case in which compensation should not have been given but was given, he can cite a case in which compensation should have been given but was not, and that that is a sign that the judiciary are getting things right. However, that seems to suggest that the judiciary are getting things wrong in all such cases and right in none.
§ Mr. Dismore
The hon. Gentleman misconstrues my argument. I said that generally speaking, the judiciary do get it right. Occasionally, they get it wrong, and those are the cases that are sensationalised in the tabloids. However, they also occasionally get it wrong the other way, by refusing compensation in cases where, in the view of most people. it should be paid. So we are talking about swings and roundabouts, but overall the judiciary do get it right.
§ Mr. David Stewart
If we have a compensation culture, why has the number of personal liability lawyers reduced by 7 per cent. in the past year?
§ Mr. Dismore
My hon. Friend makes a very important point, to which I shall return when I deal with the red herring of the compensation culture.
The hon. Member for New Forest, East says that we are seeing such developments because lawyers are greedy. Some are greedy, but they are the ones who are rapidly going out of business—the point to which my hon. Friend the Member for Inverness, East, Nairn and Lochaber has just alluded. As a result of the new conditional fee agreement method of financing personal injury claims, lawyers can make no money out of pursuing duff claims because they get no money at the end. The lawyers who advertise for cases here, there and everywhere—on buses, television and so on are those who are rapidly going bust because they are pursuing cases that are no good, or because they are simply not getting any money. Reputable law firms who undertake such work do not pursue duff cases. When I was in practice, the rule of thumb was that about one third of cases were good and one third were no good, and one had to do a bit of work on the remaining third in order to decide whether they were good or not.
§ Lawrie Quinn
Further to the clear point made by my hon. Friend the Member for Inverness, East, Nairn and Lochaber (Mr. Stewart), public liability claims went 1673 down by 16.7 per cent. in 2003–04. Is that not because people are taking the proper precautions to ensure that such problems do not arise in the first place? Should not the House be doing precisely that: ensuring that risk is managed effectively to prevent such problems from occurring?
§ Mr. Dismore
My hon. Friend makes a very important point and I hope to return to that issue shortly. We in the House should encourage the development of a safety culture, not a compensation culture.
§ Mr. Eric Joyce (Falkirk, West) (Lab)
Does my hon. Friend not think that we should encourage a culture in which people enjoy taking a bit of risk, instead of being obsessed with safety?
§ Mr. Dismore
Of course, and the same point has been made by the hon. Member for New Forest, East, among others. I agree that we should not develop a risk-averse society. We should encourage people to undertake certain risks, but the Bill is counter-productive in that regard because it will achieve entirely the opposite effect, as I shall explain later.
§ Mr. Burnett
The hon. Gentleman asserts that the law as it stands is about right, but he has identified real problems. What changes, if any, should be made to redress the situation and overcome problems that he himself has identified?
§ Mr. Dismore
I am not sure that I have identified a problem; the problem is the myth, rather than the reality. I certainly agree with what has been said about not encouraging a risk-averse society, but as I said, the Bill will have entirely the opposite effect. It is important that we recognise the realities of the decisions taken in such cases. If one reads the law reports rather than the tabloid headlines, one finds that there are often very good reasons why the judges took the decisions that they did. Greedy lawyers are rapidly being weeded out, leaving reputable law firms that will take proper decisions through the conditional fee agreement system, which we have debated in the House many times.
§ Mr. Burnett
It would help if the hon. Gentleman gave us the personal injury claims success rate. I gather that it is 90 per cent. or more; is that correct?
§ Mr. Dismore
I am not sure what the exact figure is, but the point of the CFA system is that it weeds out bad claims. It is pointless for lawyers to pursue claims that have no merit, because they will not get paid. That is why the CFA system enjoys a high success rate, and it is one reason why there has been such a big decline in the number of personal injury claims.
§ Mr. Dobson
Is it not true that in some cases, whether because of reality or perception, many organisations feel that if they go to court, they stand a chance of losing? Does my hon. Friend not agree that when a no win, no fee lawyer approaches an organisation for compensation, such a case is now more likely to be settled out of court than it used to be?
§ Mr. Dismore
The short answer is no, as the statistics show, and I shall go through them in due course. In any 1674 event, in such circumstances it is not the organisation that pays out but the insurance company, as my right hon. Friend doubtless knows.
The real issue is fear of litigation, with which the hon. Member for North Shropshire (Mr. Paterson) dealt, and the myth of the compensation culture. The Bill is a sledgehammer to crack a non-existent walnut. We are pandering to the urban myth of the compensation culture, rather than correcting such misconceptions. The risk is that the Bill will feed those misconceptions rather than correct them. It does nothing to dispel that urban myth, and the net result is that the losers will be the innocent children who will be killed, maimed and injured, without any prospect of compensation.
§ Mr. Burnett
If the compensation culture is a myth, why has the cost of insurance grown so hugely—if one can get it at all? I am told that often, people are denied insurance cover for certain types of adventure training, or if they can get it, it is massively high.
§ Mr. Dismore
The hon. Gentleman makes an important point, which I shall come on to shortly. There are real reasons why that is the case and it may be that the insurers do not come quite as clean as they might.
§ Mr. Brazier
Let me first put on record the fact that I have no intention of impugning the hon. Gentleman's integrity, although I believe him to be deluded in this matter—
§ Mr. Brazier
Exactly. Does the hon. Member for Hendon (Mr. Dismore) accept that a large part of the reason for the statistical change is that up and down the country people are abandoning the very sorts of activities that could have led to these actions? At 11 o'clock last night, I received a phone call from the secretary of one of the people involved in the campaign who told me that her son's secondary school in Exeter had abandoned its sports day last week because it had rained the previous night and the school was worried about being sued. In view of the court cases that I mentioned, who could be surprised?
§ Mr. Dismore
The hon. Gentleman says that he does not want to impugn my integrity and I would simply say to him that he is barking up the wrong tree here—the second time this week that I have used the canine analogy in the House.
There is no reason for school sports days to be cancelled, which brings me back to the point raised by the hon. Member for North Shropshire. There is a great deal of myth and fear, but the reality of what people can claim and recover is completely different. That is part of the problem. We should be correcting people's misconceptions of what the law is rather than what people—badly fed by tabloid headlines—think it is.
A health and safety culture has developed in this country—for some good reasons and for some bad. The good part is that we see fewer accidents, organisations conducting proper risk assessments and fewer people mangled at work. At the same time, the culture has developed the other way, leading to the self- 1675 perpetuating new profession of health and safety experts who, in order to secure the work, go around putting the fear of God into people about what they may or may not get sued for. The problem here is not that people do not get compensated—the consequence of the Bill—but the fact that the health and safety culture has got completely out of hand. That is nothing to do with being sued; it is connected with the self-perpetuating health and safety profession. which can make a living only out of frightening people. The reality of what the law says is different and the fact remains that people cannot be sued for many of the things that they fear that they can be sued for—and scuppering school sports days is arrant nonsense.
Some figures have already been quoted. The most reliable figures on the compensation culture are the compensation recovery unit figures. They are reliable because every single compensation claim has to be registered with the Government's unit, because the Government claim back the social security benefits in the event of a successful claim. Those figures show that over the past 12 months employers' liability claims fell by 15 per cent., public liability claims by 17 per cent., motor claims by 6 per cent. and clinical claims by 11 per cent. The most relevant to our concerns are the public liability claims, as those are the ones that—
§ Madam Deputy Speaker
Order. I have allowed a certain latitude to hon. Members in making their remarks because the Bill's promoter is seeking completely to recast it. However, I must ask the hon. Member to direct his remarks to the new clause and all the other new clauses and amendments grouped with it, many of which stand in his name.
§ Mr. Dismore
I will certainly do so, Madam Deputy Speaker, but important points have been raised in the debate, particularly about compensation culture, and I have been challenged to defend my position on that matter. If you are ruling me out of order, despite the charges made so far, so be it, but I vigorously stand by my position that there is no compensation culture other than in the sense of an urban myth.
§ Mr. Dismore
The hon. Gentleman says that I need to get out more, but at the risk of straying beyond your recent ruling, Madam Deputy Speaker, I would say that the hon. Gentleman should look at the statistics rather than the tabloid headlines.
The question of insurance has arisen and is dealt with in some of the amendments in the group—and there is a separate provision on insurance as well. People are asking why insurance is getting so expensive. There are a number of reasons for that. The Department for Work and Pensions consulted and produced a report on insurance over the past year. Insurers significantly underestimated their exposure to liability over several major issues a decade or so ago and the cases are now coming home to roost. People are now trying to recover their underinsured losses from those decades ago.
Small organisations are particularly important. They are finding it difficult to get insurance quite simply because the insurers cannot make any money out of 1676 them. Because of th administrative costs of running the insurance industry, the insurers do not see such small organisations as a worthwhile investment.
§ Mr. Brazier
The hon. Gentleman must accept that the proportion of the total amount of litigation involved in sport and adventure training, with which we are concerned, is absolutely minute. What is happening with the insurance premiums applies not just to small organisations providing risk-based activities—the sort of activities that insurance companies have turned against—but to large organisations. The organisations that signed the letter in The Times supporting the Bill included the Royal Aero Club, which has 500,000 members, and the Girl Guides—the largest youth organisation in the country. Those are big organisations and the letter referred to the horrendous rise in their insurance premiums.
§ Mr. Dismore
The hon. Gentleman argues against himself. If only a minute number of cases out of the overall total are brought to the insurers, how can those claims have any impact whatever on insurance premiums?
§ Mr. Brazier
The hon. Gentleman misheard me. I said that the hon. Gentle man is quoting global statistics that apply across the economy as a whole. Only a very small proportion of the totals, where he identified trends, apply to the sport and adventure training sector. The vast majority arise in commercial and other circumstances. Unless he can point to trends in the particular sector, his argument takes us nowhere.
§ Mr. Dismore
If they are only a very small part of the overall picture, I stand by my original response to the hon. Gentleman. In those circumstances, the impact of those cases on the overall trends in the insurance industry and the level of premiums would be negligible. The fact remains that public liability claims have fallen by 17 per cent. and that is the sort of insurance that we are debating now.
§ Mr. David Stewart
My hon. Friend referred to the insurance working party, which reported last year. Will he tell the House what its conclusions were?
§ Mr. Dismore
The conclusions were, quite simply, that the Government should not get involved in the insurance industry, that the compensation culture was something of a myth—yet another report reaching that conclusion—and that insurance premiums had gone up for commercial reasons. I mentioned long-tail claims earlier.
§ Mr. Dobson
Does my hon. Friend not accept that something needs to be done? He is proposing that nothing should be done, but there are, all over the country, small organisations that are either facing huge increases—a trebling or quadrupling—in their annual insurance premiums or are unable to get cover at all. I presume that my hon. Friend does not accept the 1677 conclusion of the insurance working party—or whatever the hell it was—that the Government should do nothing. What does he recommend should be done?
§ Mr. Dismore
I was only halfway through, actually. The short answer to my right hon. Friend's points is for us to get the insurance industry by the scruff of the neck and make it insure some of the organisations that are having such difficulties. The reason for the problem is quite simple. The insurance industry does not believe that it can make any money of out these organisations; it does not view that line of work as commercially viable. It has nothing to do with the claims record. A small organisation would normally pay a relatively small premium in the overall global sum. A percentage increase will dramatically increase the amount that it ends up paying. That is the problem—one of commerciality in the insurance industry and nothing to do with the claims record.
§ Mr. Burnett
I am grateful to the hon. Gentleman for taking so many interventions. He rests his case, in part at least, on a reduction in claims registered with the compensation recovery unit. Does he believe that all unlitigated claims, settled without any action whatever, and all payments on a personal injury matter made by every insurance company are registered?
§ Mr. Dismore
I sincerely hope so. because otherwise the insurance companies would be committing criminal offences. If the hon. Gentleman suggests that Lloyd's or other insurance companies are not complying with the law, that should be investigated. If insurance companies do not report settlements, they are committing serious criminal offences. If the hon. Gentleman has evidence of that he should produce it, because it is an issue of great public importance.
I mentioned my concern that tree Bill is counter-intuitive. It purports to try to increase the number of volunteers. However, I am concerned that it will deter children from engaging in the activities that the volunteers would be supervising. Suppose young Johnny and Jill asked their parents if they could go on an Outward Bound trip and said, "Oh, by the way, if I fall off and break my leg—or worse, fall off and become a paraplegic—because of a cock-up by the people organising the course, I will not be able to claim any compensation. Can I still go?" I think in today's society many parents would think twice about allowing their children to go on trips for which they are effectively uninsured—that would be the consequence of this Bill.
§ Mr. Dobson
My hon. Friend is starting his own modern urban myth. There is nothing in new clause 29 that says that someone can make a mess of organising things and get away with it. As I have said, we are talking about the courts, not the Butler report.
§ Mr. Dismore
I shall demonstrate how my point is justified in terms of new clause 29. My right hon. Friend implies that children will have nowhere safe to play and 1678 that children's play cannot be made risk-free. I agree, and so does the law. That is not the issue. I am concerned that children will not be allowed to go on courses because parents fear that they will not receive compensation if they are injured.
§ Mr. Brazier
The hon. Gentleman has lost the thread of his argument. There is nothing in the Bill that prevents parents from insuring their children, or anybody else insuring themselves. All the Bill says is that a reasonable degree of blame must be attached before a negligence claim would be upheld against a volunteer.
§ Mr. Dismore
I am amazed, because the hon. Gentleman is now advancing a system of no-fault liability for such cases. If he thinks that the existing arrangements are expensive, he should examine the costs of a no-fault system, in which everybody is insured against injury, whether or not anyone is at fault—
§ Mr. Dismore
Well, that is the logical consequence of his argument. If there is nothing to stop people being insured, irrespective of any negligence, the logical corollary is that everybody has to be insured against every injury. That might be a benefit, but it would be prohibitive in cost.
§ Lawrie Quinn
My hon. Friend is indeed being generous with his time. The hon. Member for Canterbury (Mr. Brazier) made a fair point about negligence. As I said earlier, I am concerned about how the rules of negligence could be varied by the new clause. I note that in amendment No. 60 my hon. Friend tries to respond to the concerns about clause 2(3)(d), which would turn the duty on employers under health and safety legislation into a shared responsibility. When will he address the reasons why he seeks to delete that paragraph?
§ Mr. Dismore
Well, the hon. Gentleman may have a short wait.
My right hon. Friend the Member for Holborn and St. Pancras also made the point that the problem is not only the number of cases that go to court, but the number of claims that are registered and the grief that arises from them even if they are lost. He also pointed to the length of time the cases take. However, the way in which the new clause is phrased will not address that problem. Indeed, it would make it worse. The new clause is a lawyer's charter, and cases would last even longer because there would be much more to argue about.
My right hon. Friend also mentioned various charity groups. I agree that some charities are small, but some are enormous. In preparing for the debate, I checked with the Charity Commission and discovered that there are 4,500 charities with a turnover of more than 1679 £1 million. Many of them are not charities in the sense that we normally think of charities: they are big businesses.
§ Mr. Dismore
My right hon. Friend is correct. Eton college is a charity, as are London zoo and several theatres. I shall give some examples involving such organisations shortly.
The problem with the Bill is that it is called the Promotion of Volunteering Bill, but that is not what it would do in practice. It fails to address the real reasons why people do not get involved in volunteering and it does not have any ideas to deal with those reasons. People feel that they do not have the time to volunteer. Sometimes they feel that they are not asked to volunteer, or they fear that they would be out of pocket for doing so. The Bill does not address any of those issues. We have the right to time off for public duties, such as serving as a magistrate or on a local authority. Perhaps we should consider giving people a limited right to time off to engage in volunteering activities.
§ Mr. Joyce
My hon. Friend gives reasons why there has been a decline in volunteering. However, it is clear that many hon. Members believe that there are good reasons for linking a lack of volunteers to the compensation culture. He says that that is an urban myth, but I am not sure how scientific that suggestion is. Does my hon. Friend accept that there is broad agreement about the existence of the compensation culture and that it is affecting the number of volunteers?
§ Mr. Dismore
That is a bad reason for accepting something. The House should get to the facts—it should not get bogged down in prejudice, myth, newspaper spin and spin put out by the insurance industry—
§ Mr. Dismore
He ain't seen nothing yet.
There is an argument, but it is a false argument and not based on fact or reality. Every time anyone has done a proper study—be it the Better Regulation Task Force or examination of the CIU statistics—the same conclusion has been reached: there is no compensation culture. It is a misconception, and that is what we should deal with—not a perceived problem that does not in fact exist.
§ Mr. Brazier
I again refer the hon. Gentleman to the December survey by Sport England and the Central Council of Physical Recreation, which found eight reasons why people did not volunteer, including several that he has mentioned. However, the top reason was the blame culture and the threat of compensation. It was the fifth such survey to show the same result.
§ Mr. Dismore
That does not make it right. The answer is not to pander to that misplaced belief, but to tell the truth about the situation. We should put the facts before people, explain what the law says and stop reinforcing 1680 an idea that is not true. The Bill is called the Promotion of Volunteering Bill, but it would not do what should be done to promote volunteering. We could do many other things that would have a much more positive effect, including giving people the right to a limited time off work for volunteering activities—
§ Madam Deputy Speaker
Order. As I said earlier, I have allowed a certain degree of latitude, but we are now slipping back into a Second Reading debate. Will the hon. Gentleman please address his remarks to the new clause?
§ Mr. Dismore
I am sorry, Madam Deputy Speaker, but I was sent down that byway by the intervention of the hon. Member for Canterbury (Mr. Brazier). If people challenge me I tend to react, as I do not believe in perpetuating myths.
In new clause 29 the hon. Gentleman has produced an ill-thought-out collection of words; it is a back-of-the-envelope job—[Laughter]. There may be some mirth because the suggestion may also have come from a one-time, senior member of the Government, but I doubly stand by my remarks about the new clause being ill-thought-out and badly worded. The hon. Gentleman has junked his Bill entirely by getting rid of clauses 1 and 2 and is asking the House to start all over again.
Earlier on, Madam Deputy Speaker, you indicated that you would not accept a motion that the Bill be recommitted to Standing Committee. I am disappointed about that, because the new clause completely changes the original wording of the Bill and itself requires a large degree of amendment. All that is left of the hon. Gentleman's original Bill are the commencement provisions, and there are even amendments proposed to them.
The Bill is a lawyer's charter. I am a lawyer; I know a charter when I see one and the Bill will make things far worse. It is vague and badly worded. Let us start, for example, with "for example" in line 1 of subsection (2). Lawyers will have a field day with that "for example". I do not know where the hon. Gentleman stands on Europe, but his new clause would import to UK domestic law European legal principles: the purposive approach, whereby one does not consider what the words actually say but tries to work out what they mean from a general assessment of what the clause says. In English law, we look for specifics and if there are none lawyers will take the Bill to pieces.
Subsection (2) lists things that are "for example":recreational, sporting, play or other activities".That list is not exhaustive, so lawyers—in this case, defence lawyers—will come up with all sorts of other ideas that do not quite fit into it. Indeed, having begun with "for example", it is somewhat tautologous to refer to "other activities". If the words "for example" are included, why do we need "other"? That is an example of how badly the Bill is drafted.
Defence lawyers will be able to say, "Well, this activity was meant by 'for example'", and all sorts of cases that could be perfectly properly brought at present will be excluded. For example, supposing someone is injured at work and that work involves supervising swimming, for example, as a volunteer lifeguard; and, for example, they drown—for example, will they be 1681 caught by the Bill even though it was an accident at work and thus not covered by the hon. Gentleman's original intention? In some ways, that could be classed as a sporting accident. There are many, many ways to talk about such provisions.
The words "inherent risk" also offer a field day for lawyers. What do we mean by inherent risk? Let us consider football, or rugby, which was mentioned earlier. At present, the law says that if one engages in a physical contact sport such as rugby or football, one accepts the normal risks of the game played according to the spirit of the game and its rules—
§ Mr. Dismore
I am just about to explain that there is a lot in inherent risks. When lawyers get hold of that definition of inherent risk they can extend it far, far beyond what is the case. If someone breaks their leg playing football but the tackle is legal, that is inherent risk and under existing law no compensation would be due; but if someone breaks their leg as a result of a foul tackle, is that inherent risk or not? Under existing law, probably not, especially if the game has been somewhat violent.
To give my right hon. Friend an example: suppose one is playing pub football against a team known for its robust approach and the game gets out of hand, the referee loses control, and someone breaks a leg due to a foul tackle of the most violent type—as we sometimes see on the football field. Is that inherent risk or not? As a lawyer, I should be able to construct a strong argument, depending which side I was on, that it was or that it was not.
Similarly, in rugby, a series of cases has arisen from collapsed scrums. The most recent case was, I think, Vowles, and there was a big argument about it. The referee was sued because a player, in breach of the rules, was allowed to go into the front row of the scrum when he had no experience of doing so. That was a breach of the Rugby Football Union rules and in those cases the sportsman was able to recover damages. In previous cases, a scrum was allowed to collapse in a colts game, against RFU rules and guidance and the boy was allowed to recover. But are those inherent risks of a sport? Should people be unable to recover if they are left a paraplegic as a result of a manifest failure to apply the rules?
The existing law is clear: inherent risk is risk in the game as it is supposed to be played. However, under the Bill, that meaning could be extended way beyond that to exclude or include, depending on which side of the argument one happened to be.
§ Mr. David Stewart
But does that not relate to the points made earlier about training and how well trained people are—be it in football or rugby?
§ Mr. Dismore
My hon. Friend makes an important point and I have tabled a number of amendments that deal with it in detail; it is important that people are properly trained, but the difficulty with the Bill is that 1682 some bumbling idiot could be running a game or an activity and they would be exempted from liability. I shall come to that point shortly.
Canoeing was referred to earlier. The Lyme bay tragedy was a famous case, in which four children drowned on a school trip because the activity was not properly supervised. The organisation providing the activity was not properly trained or equipped and the whole thing was a mess from start to finish.
Drowning is an inherent risk of canoeing—
§ Mr. Dobson
My hon. Friend is just trying to be a flash lawyer, but he will recognise that as subsection (2) of the new clause follows and relates to subsection (1) people would need to demonstrate that they were exercising "reasonable care" or "reasonable skill" in supervising canoeing.
§ Mr. Dismore
My right hon. Friend raises the questions of reasonable care and reasonable skill. I shall be coming back to those because, as a lawyer, whenever I see the word "reasonable" I think, "Ah, we've got something to argue about."
My right hon. Friend says that I am being a flash lawyer, but what I am demonstrating is what, to use his term, flash lawyers will be able to do with the Bill. He can accuse me of being a flash lawyer if he wants, but the fact remains that this is what people will do with the Bill. They will construe the new clause in the same way as I am doing now and they will have a field day, yet that is what the hon. Member for Canterbury is trying to prevent.
§ Mr. Joyce
I am surprised to hear my hon. Friend suggest that we cannot use the word "reasonable" and understand it in a common-sense way. Surely, we all understand what reasonableness is. Hon. Members do not have to be lawyers—I am not one. I am sure that a lot of what he has said is very intelligent and learned, but, frankly, we have to understand some basic principles, one of which is surely the idea of reasonableness.
§ Mr. Dismore
My hon. Friend refers to reasonableness. I have here a big fat book, from which I may have to quote later, called "Clerk & Lindsell on Torts"—the bible on the subject—most of which is about the meaning of the word "reasonable", so I hope that my hon. Friend will not tempt me down that route, or we shall be here even longer than I anticipated.
§ Mr. Dobson
My hon. Friend suggests that we are importing some novel and wondrous opportunity for him and his fellow lawyers to exploit. The concepts of reasonableness and risk are already in the law. We are trying to clarify the law and to declare what the law is. What we suggest would be beneficial, and we have reason to believe that senior members of the judiciary share our view.
§ Mr. Dismore
I am not sure which senior members of the judiciary my right hon. Friend is talking about, but such words are open to interpretation whenever they are 1683 put in a new context, and I am suggesting how a lawyer—he refers to a flash lawyer; not myself, of course—may try to interpret those words.
§ Mr. Burnett
The hon. Gentleman says that he has with him a learned book on torts, which are civil wrongs, other than breaches of contract. There is no magic in that word—he does not suggest that there is—but a lot of the book that he cites refers to the academic discussion of reasonableness. All we would do is add another few lines to that book to redress the balance, so that volunteers are not adversely affected and that people have an opportunity to pursue adventure activity, and to cut back on frivolous and vexatious litigation, which is often pursued by lawyers and claims assessors who have a vested economic interest in the outcome.
§ Mr. Dismore
There are two points there. First, the hon. Gentleman makes a vitriolic attack on lawyers. In fact, their vested interest lies in ensuring a successful outcome, not in running daft cases, as we discussed earlier. He says that he wants to add a few lines to "Clerk & Lindsell on Torts", but we would end up with a rather large chapter if the new clause were accepted because the courts would have to interpret a raft of new words.
§ Lawrie Quinn
I do not wish to make a point about rafts, but to return to canoes. With regard to subsection (3), which my hon. Friend was trying to address, when I was in Alaska last summer—presumably, this relates to the north American model of law—I had to sign a waiver before I went in a canoe to dispel any risk. Does he envisage that subsection (3) would involve a piece of paper to show a variation in the contract between the user and the provider of the volunteer activity? Would a waiver document be required to fulfil that part of the contract?
§ Mr. Dismore
My hon. Friend makes a very important point, and I shall consider later how someone can be said to have knowingly accepted a risk. My hon. Friend makes a point about exclusion clauses. At present, such clauses are not permitted in English law, primarily because of the Unfair Contract Terms Act 1977 and other legislation. In fact, we shall consider a separate amendment on unfair contract terms, so I will not go into that in detail now, but he refers to United States litigation. Comparisons are often made between this country and the US. I simply say that, pro rata, on a comparison of gross national product, compensation claims overall in this country are only a third of what they are in America. That gives the lie to those who say that we are going down the American route.
I was talking about the canoeing accident, which is a clear example of how inherent risk may be interpreted differently as a result of the new clause. We also have a problem with the word "harm" in subsection (3). What does the word "harm" mean in these circumstances? No definition is provided. Are we talking about serious physical injury, minor physical injury, psychological injury or psychiatric injury? Are we talking about little Johnny simply being upset? Are we talking about property damage? All those issues could come within the word "harm".
1684 It is rather peculiar that the hon. Member for Canterbury proposes to use the word "harm" without thinking through how it could be interpreted in these circumstances. I can envisage arguments developing about what that word means. I can illustrate that with a recent case on the interpretation of the Warsaw convention, which is the law that makes provision for compensation in relation to air accidents and contains not dissimilar wording. It states that, in those circumstances, the word "harm" is limited only to physical injury and excludes psychological and psychiatric injury. I suspect that that would not be the intention now if the Warsaw convention were updated, but the definition has had a rather perverse effect. In leaving it in such a vague and woolly form, the hon. Gentleman would open the door not only to legal arguments but to extending the law beyond where it is now without referring to, for example, a recognised medical condition.
If one wants to recover compensation for psychiatric injury, the law. at present, looks not in terms of general upset but to the fact that one can show that one has a recognised psychiatric injury. The proposed definition of "harm" might open the floodgates that the courts have been trying hard to close in terms of psychological and psychiatric injury. I am concerned that, far from reducing the number of claims, the hon. Gentleman might extend them by his failure to define "harm".
I am very concerned about the issue of parents signing for their children. In the Bill as it stands—there are amendments to this effect—we have had arguments about the age at which children should assume responsibility for their own safety. However, there is now no such argument in the new clause. A minor in this context would mean somebody under the age of 18. That flies in the face of previous discussions. Are we suggesting that the parent should sign away the rights of a 17-year-old or are we simply talking about small children? The Bill is silent on that.
§ Lawrie Quinn
Does that not also suggest that under 18-year-olds would probably need consent from their parents before they could take part in such activities? In some cases, parent might not receive advance notice of the activity taking place.
§ Mr. Dismore
My hon. Friend makes an important point. We heard earlier about the risk of bureaucracy, and I suspect that there would be an increase in that. If a 17-year-old wanted to engage in exciting activities, the net result would be that we should have to go through the whole parental consent process when, at present, we may not have to do so. There was previously provision for that in, I think, clause 2, which would be deleted by this group of amendments and new clauses, and it is bizarre that we should remove any debate about the age at which someone should assume responsibility for their own safety. I am concerned that the new clauses and amendments would make no provision for that at all. Far from trying to deal with a risk-averse society, we may be creating one.
The intervention of my hon. Friend the Member for Scarborough and Whitby (Lawrie Quinn) presaged the point about knowingly accepting a risk. I see great fun in the arguments about what we mean by "knowingly accepted", never mind "risk", which we shall come to 1685 shortly. How are we supposed to know that a risk has been "knowingly accepted"? I suspect that the only way to do that would be through some form of written undertaking. Again, that would create bureaucracy. The docket that the hon. Gentleman wished to introduce would come in through the back door. Instead of the safeguards that were originally in clause 2, we would have a free-for-all, again involving lawyers who would, again, make vast fees drafting how the "knowingly accepted" dockets would apply to particular activities. Again, that flies in the face of what the hon. Gentleman is trying to achieve.
We must ask what "knowingly accepted" means. The existing law on this is very clear and, in this context, relates to agreeing to waive a claim. It is summed up by the Latin maxim "volenti non fit injuria", which is set out in "Clerk & Lindsell on Torts". Three things must presently apply if volenti is to be used as a defence—and it is an absolute defence. First, the claimant has to agree to waive the claim against the defendant. Secondly, the agreement must be voluntary and not the result of compulsion by the defendant or external circumstances. Thirdly, the claimant should have full knowledge of the nature and extent of the risk.
§ 12 noon
§ Mr. Dismore
I do not think that I have spoken for that long so far.
The question of knowledge in those circumstances—the hon. Member for North Shropshire was probably talking about it before he made his sedentary intervention—is significant. The fact remains that such a defence rarely succeeds and has become overcome or overtaken in law by the concept of contributory negligence, which is a far fairer and better way of trying to apportion the risks.
We discussed earlier some of the assumptions about risks in football games and so on, so I shall not repeat those points. As the law presently stands, agreeing to waive a claim is an important doctrine. It was best set out by Lord Denning:Knowledge of the risk of injury is not enough. Nor is a willingness to take the risk of injury. Nothing will suffice short of an agreement to waive any claim for negligence. The plaintiff must agree, expressly or impliedly, to waive any claim for any injury that may befall him due to the lack of reasonable careby the defendant under the relevant Act.
§ Mr. Dobson
Will my hon. Friend do us the favour of reading out again the passage to do with reasonable care, which appears to be in the law already?
§ Mr. Dismore
I am not highlighting reasonable care, but referring to agreement to take the risk. Of course, I am happy to read out the passage again to my right hon. Friend:Knowledge of the risk of injury is not enough. Nor is a willingness to take the risk of injury. Nothing will suffice short of an agreement to waive any claim for negligence. The plaintiff must agree, expressly or impliedly, to waive any claim for any injury that may befall him due to the lack of reasonable careby the defendant.
§ Mr. Dobson
What we are proposing would not excuse people in respect of a lack of reasonable care. The 1686 provisions specify that those involved in the activities should take reasonable care and exercise reasonable skill.
§ Mr. Dismore
Of course, but not in the context that I am talking about. What we are talking about is knowledge of the danger. The real issue is not the reasonable care aspect. There is a series of hurdles to be overcome in legal claims, whether one is defending or promoting. What I am arguing about is the words "knowingly accepted". Lord Denning stated that acceptance must be very clear. I shall come to the point about knowing in a moment.
Nothing in the new clause says how acceptance by the individual must be demonstrated. If there is no specification, one has to fall back on existing case law. The implication is that we will end up with a paper chase of written acceptances every time an event is organised, and a complete deterrence of the sort that the Bill is trying to avoid.
§ Lawrie Quinn
I am listening closely to my hon. Friend. Unlike him, I am not a lawyer; I tend to be a practical, down-to-earth person. Is it his interpretation that in planning a weekend scout camp, a scout master would have to lay out a detailed assessment before parents or guardians saying which activities would be dangerous or carried a risk? That could mean the scout master having to carry out risk assessments in respect of the whole weekend—the journey to the camp, songs around the campfire, pot-holing activity or whatever else. Does that not support my hon. Friend's statement that there would be a paper chase?
§ Mr. Dismore
My hon. Friend is absolutely right. The original Bill—we see amendments before us that seek to take it to pieces—talked about statements of inherent risk. The hon. Member for Canterbury proposes that the House should remove such statements from the Bill, presumably to get rid of the paper chase that has previously been criticised. He is creating a paper chase with knobs on by the back door—at least a statement of inherent risk has a checklist of things that should be in it.
No one will know what the system means before a few cases come to court. Lawyers would draft documents for people to sign, and volunteers would be even more confused than they are now, because of the need for a clear acceptance of risk. The hon. Member for Canterbury has shot himself in the foot by proposing to take out the statement of inherent risk.
§ Mr. Dismore
The hon. Member for Canterbury has created another problem because the current legal definition of volenti will inevitably be transported into paragraph (3). He could have introduced a clause stating, "acceptance can be signified orally", although I suspect that most organisations would still want the belt and braces approach if they were to rely on that particular defence.
We have dealt with the issue of "acceptance", so we come to the question of "knowing". "Clerk & Lindsell on Torts" says that if it is alleged that the claimant was 1687 responsible for his own injuries, it must be shown that he was fully aware of the relevant danger and consequent risk. I will not read out the whole passage, because that would be out of order, but paragraph 383 states:Knowledge must be full and complete. The defendant must demonstrate that the claimant had full knowledge of the nature and extent of the risk which he is alleged to have assumed.It is not enough to show that danger was apparent or that in a general sense the claimant was aware of the risk.
There is the argument whether that knowledge is objective or subjective, which brings us to people with disabilities. For example, people with learning disabilities may or may not be able to assume knowing acceptance of risk. Without a definition of "knowing", we are thrown back on to the law, which requires an extremely full explanation of the risks.
One problem identified by my group of amendments is that clauses 2 and 3 refer to risk in only a roundabout way. The problem is that there is no requirement to explain all risks. Returning to the canoeing accident, if one goes on a canoeing expedition, there is a risk that one may drown, which is what happened in that case. Are we saying that the people involved in that case should be excluded because they knowingly accepted the risk of drowning?
There are real problems of causation in law. Does the Bill refer to all the risks involved or just some of the risks? If some of the risks must be explained, why does the Bill not say so? If only some of the risks must be explained, a threshold should be included to cover the most important risks or the risks that can be readily identified. Again, I return to my point that the provision is a lawyer's field day, because we will have those arguments in court time and time again.
§ Lawrie Quinn
I am grateful to my hon. Friend for being so generous. In the case that he mentioned, four children drowned and there was a problem with a lack of early understanding of a weather forecast about flash floods. To what extent does new clause 6, which refers to expert evidence, help the hon. Member for Canterbury (Mr. Brazier)? A scout master cannot be expected to be a meteorologist or, for example, to understand the consequences of topography and geology in a limestone landscape.
§ Mr. Dismore
My hon. Friend has foresight, because I was about to come on to that in the context of new clause 29. At this point, we get into the argument about what is actually meant by
taking reasonable care or exercising reasonable skill.Does the new clause try to reinterpret existing law or to create new law? The existing law is very clear: it says that a certain type of professional is expected to exercise the level of skill that would go with being such a professional. As a lawyer, I am expected to know the limitation period for a personal injury claim, as is a trade union official. However, the average man in the street is not expected to know that. If someone hobbles into the pub on sticks after a football accident, sits down at the bar and says, "I've had this accident.", and his mate says, "Don't worry about that—you can sue for years 1688 afterwards.", there would be no problem. However, if I said the same thing and offered to take the case, I could be sued because I had not exercised the reasonable skill of my profession.
Similarly, outward bound instructors would be expected to exercise the reasonable skill that goes with that profession. Would the new clause exempt them from exercising that level of skill and apply the test of the apocryphal man on the Clapham omnibus by saying yes or no, because that is the general test of reasonableness in personal injury law? Would volunteers who assume responsibility—for example, lifeboat men or cave rescuers—be exempted from having to exercise their professional skills and have only to exercise the skills of a bumbling idiot to avoid liability under clause 1?
§ Mr. Joyce
I am sure that what my hon. Friend says makes sense to him, as a lawyer, but it does not make much sense to me, although I think that I understand what the words "reasonable" and "no" mean.
What does my hon. Friend think is reasonable behaviour for someone who is not particularly well qualified? I recently saw an example in the papers. A teacher who was utterly unqualified took a school party out in the hills, with the children wearing normal shoes suitable for walking in the high street. Clearly, that was preposterous. One might say that she did not have training and therefore could not know what was reasonable behaviour for an expert. However, as an intelligent human being, she should have realised that she was behaving unreasonably and getting way out of her depth in a situation that she could not handle. From that point of view—
§ Mr. Dismore
I am not sure that I got my hon. Friend's drift. I understand his point, but he is not necessarily using the best example. Perhaps I could extrapolate to make it a little clearer. Let us suppose that an experienced leader takes out such a party, although his experience of analysing weather forecasts suggests that there will be bad weather. Under existing law, he would be expected not to do that because he would reasonably exercise his experience, knowledge, skill, training, and professional qualifications. If, in spite of his professional skill, experience and knowledge, he took out a party and the worst happened, he would be sued under existing law. If the average man in the street looked up at the sky and said, "Oh it doesn't look too bad. We'll go out with all the right kit", and got caught, he could also be sued under existing law. Do we want to apply the same test to the skilled and the less skilled person? Will we expect the skilled person to fulfil only the lesser standard of the unskilled person?
Let us put the matter in another context. A person who needed a complex heart operation and went into hospital would expect a competent heart surgeon to carry it out. Are we saying that, if the GP down the road conducted it, the he art surgeon would have to meet only the standard of the GP or a lesser standard? That is the 1689 problem with the provision's current phrasing. It does not say, "recognising reasonable skill in any way qualified." It does not provide that any professional experience or qualifications should be exercised. That is one of my concerns about reasonableness and the reason for my contention that we would end up with a new chapter in "Clerk & Lindsell" to interpret the new clause.
§ Mr. Dobson
Why would a new chapter be necessary? The concepts of reasonable care and exercising reasonable skill already exist in law.
§ Mr. Dismore
Because we are considering a new measure, which attempts to modify the common law. New legislation must inevitably be interpreted. The courts might well interpret it in accordance with existing law, but I can envisage defence solicitors and barristers attempting to raise a defence, based on clause 1, that the defendant should not be liable because the provision imposes a lesser duty than existing law. If clause 1 said, "And this restates the existing law on reasonableness", that would be fine, but it does not. If clause 1 required those who profess expert skills to exercise them, that would also be fine but again it does not. I am worried that, because it does not make any such provision, we would end up with a lawyers' field day.
§ Mr. Dismore
It is common law. The law on negligence has been developed overwhelmingly through common law. It has been occasionally modified by statute, for example, through occupiers' liability legislation, but statute always takes priority over common law, which interprets statute, and we are considering statute. I am worried about whether we are restating existing law; the Bill does not say that. We may be introducing new law but, again, the Bill does not state that. The measure is open to interpretation and that means a lawyers' field day and a new chapter in "Clerk & Lindsell".
I am worried that such consequences will ensue because the Bill is not well drafted. I believe that my right hon. Friend the Member for Holborn and St. Pancras said from a sedentary position earlier that a judge may have drafted the Bill. Perhaps the judge is trying to drum up a bit of extra business in interpreting some of the more difficult aspects.
§ Lawrie Quinn
I am listening carefully to my hon. Friend's comments about reasonableness. I am sorry to revert to an earlier point, but I asked him about the measure's impact in the context of the Health and Safety at Work etc. Act 1974. He knows that legislation well; it is based on what is practicable. I think that my right hon. Friend the Member for Holborn and St. Pancras might have had it in mind. How does new clause 29 undercut the central and important principle of the 1974 legislation?
§ Mr. Dismore
That is an interesting question. My hon. Friend knows that there is argument, especially over the word "reasonable", which is incorporated in sections 1 to 6, about whether the 1974 Act complies with our legal 1690 duties to Europe. Subsequent pieces of legislation could well apply in these circumstances through Europe—through the six pack directives, and so forth—which argue that reasonableness should not be included in the provisions because it is open to such wide interpretation.
The Health and Safety at Work, etc. Act 1974 does not create or deal with civil liability, so in that respect it does not specifically impinge on the new clause. However, a lot of the subordinate legislation does create civil liability. We could have a hybrid position in which people at work would be covered by the health and safety legislation—nothing in the new clause deals with a breach of statutory duty, so far as I can see—while other people who had been injured in the same circumstances would not be covered. One person might have a claim—effectively an employer's liability claim—while another might not. A professional guide doing an outward bound course on the moors, for example, might have a volunteer with them. If both were injured through the fault of another, one could end up being able to sue, but not the other. That raises significant questions under the Human Rights Act 1998. If there is a distinction made between two people in the same circumstances, that would constitute a clear breach of that Act in terms of the right to a fair trial.
§ Mr. Dobson
My understanding is that my hon. Friend is arguing that our proposed new subsection (1) would introduce new complications into the law. He said that the common law distinguishes between the duties of care of an expert and of the man or woman on the Clapham omnibus. He has also confirmed that, in interpreting subsection (1), the common law distinctions would apply. If that is the case. we are not changing the law at all. We have never claimed that we were changing the law, particularly in relation to subsection (1).
§ Mr. Dismore
I am afraid that my right hon. Friend is not right. We are going back to an old argument here, but I shall go through it again for his benefit. The common law sets out the law of reasonableness; it does so here in relation to provisions for experts. There is no argument about that. We then superimpose on that a new statute, which has to be interpreted by reference to the common law. I am not saying that this provision does or does not change the law. All I am saying is that there will be arguments about whether it does so by defence insurers trying to avoid liability for claims brought by people who have been injured.
§ Mr. Dobson
But that is the case now. What I am saying is that, if the courts' interpretation of the common law concept of reasonableness or of exercising reasonable skill presently distinguishes between a greater obligation on the expert than on the ignorant lay person, it will continue to do so.
§ Mr. Dismore
My right hon. Friend misses the point. My concern is that because the new clause does not set that out, we could end up imposing a lesser standard on the expert than the law does at present. People who are presently held liable for negligence might then be able to escape a finding of negligence because there would be a lesser test imposed on that individual as a result of the new clause.
§ Mr. Dobson
From where would the judges import that lesser obligation? As I understand it, they could 1691 import it only through the application of the existing common law or, failing that, through an interpretation of the intention of Parliament. Nobody here intends to reduce the obligations on the expert.
§ Mr. Dismore
My right hon. Friend is, I think, referring to Pepper v. Hart, which offers such an interpretation. That really only comes into play in the higher appeal courts. I return to my right hon. Friend's earlier point about the problem of having a lot of litigation. This provision will create litigation, because there will be arguments about what it actually means in this context. I am constructing an argument on the issue—which might not be right; I accept that it could be wrong—but if I can put this argument forward, a defence lawyer can also do so to try to defeat a claim. If that were to happen, the case would have to be decided by a judge, and it could go all the way up through the appeal courts to the House of Lords and all the way back down again. What we have here is a whole new law that would have to be interpreted by someone, and because the provision is badly worded, the net result will be a lawyers' charter—a lawyers' field day.
Now, if may make a little progress, I will consider subsection (5) of the new clause. The Bill contains clauses, which later amendments would remove, that contain a definition of volunteering and voluntary organisations. I will come to that when I address my own amendments in a little more detail. Here, we see all that swept away. It has become too difficult to define what a volunteering organisation is, so the hon. Member for Canterbury and his colleagues are saying, "Leave it to the Secretary of State—dump the whole thing on him." That is a cop-out.
The Bill contains detailed definitions of what should or should not be a volunteering organisation—I will come back to that—but we have none of that in the new clause. Does that mean that the hon. Gentleman has resiled from the original intentions? One can only assume so, because he and his colleagues propose to delete those clauses. If they have resiled, why? Is it because, for example, they have found that many charities are not charities and should not be protected? My right hon. Friend the Member for Holborn and St. Pancras mentioned the example of Eton college being a charity. He made an important point.
The fact remains that other organisations—London zoo, for example—are charities. Let us suppose that London zoo effectively becomes a voluntary organisation. I am sure that my right hon. Friend knows the monologue about Albert and the lion, which refers to Blackpool zoo, but the same principles apply. Albert put his
stick with an 'orse's 'ead 'andlethrough the bars of the lion's cage, and the lion put out his paw, grabbed Albert and ate him.
§ Mr. Dismore
She were. She were also very badly legally advised, because she went to the wrong court. The magistrate said thatno one was really to blame",1692 but if she had taken the case to the High Court I think somebody would have been found to blame.
That is the point I am coming to. The issue is at large. Under the existing wording. London zoo could be seen as a voluntary organisation and, if someone were to be injured by a lion at the zoo, they could potentially be unable to bring a claim, especially if the incident happened on a school trip. That may sound a little fanciful, but I read in a newspaper the other day that a gorilla escaped at Berlin zoo. It was recaptured without any injury being caused, but suppose a gorilla—or perhaps a chimpanzee, which would be rather more dangerous—escaped and mangled a child. Due to the way the Bill is phrased, there may be opportunity to avoid liability. I suspect that most people, in such circumstances. would think that a bizarre outcome.
As the Bill is presently phrased, London zoo is a charity and therefore a voluntary organisation. If people were to write on the back of the ticket, "I agree not to sue the zoo"—
§ Mr. Dismore
They do not at the moment, but if the Bill is passed I suspect that we will quickly find on the back of the ticket the words, "I undertake not to sue the zoo if I get attacked by a lion or mangled by a gorilla." In such circumstances, although people might think that they would be able to bring a claim, they could not. That is the problem with the existing wording. The hon. Member for Canterbury is right to draw attention to its deficiencies by proposing to delete certain proposals, but he is not putting anything back. He is simply putting. the burden on my hon. Friend the Minister, who would have to decide whether London zoo should be covered.
§ Mr. Joyce
I thank my hon. Friend, who is being extremely generous in giving way. I want to understand the gist of what he is saying. He seems to object to this subsection on the basis that it would make work for the Department, but that is an administrative issue for the Department, not a legal problem. It is not a reason to object to the subsection.
§ Mr. Dismore
I think my hon. Friend misunderstands what we are about. We are trying to pass good law, not bad. My concern is that the original proposals contain a list of voluntary organisations or volunteering bodies—I have tabled a series of amendments on what should or should not be included in it—but here the issue has been left at large. The Minister could go away, fiddle about with it and perhaps come back with proposals that, in the end, would be dealt with under the annulment procedure rather than the affirmative procedure. They could be slipped in and most people probably would not even notice that we had done it.
My point is that that should have been included in the Bill. It should not be a matter for regulation—it is too important for that. The hon. Member for Canterbury has effectively copped out. He, and his High Court judge or whoever has been drafting the Bill behind the scenes, have suddenly realised that they cannot come up with a definition. If a High Court judge and all the other people whose services he has engaged on the Bill cannot come 1693 up with a definition, how can my poor old hon. Friend the Minister be expected to do so to the satisfaction of Parliament and the public at large? That is a real cop-out, and it is unfair to the House and my hon. Friend. Having done that, saying that it should be slipped through via the annulment procedure rather than the affirmative procedure is a travesty of democracy. If the hon. Gentleman finds it so difficult, which means that my hon. Friend the Minister would no doubt also be taxed, and if it is to be slipped through without further parliamentary scrutiny unless some eagle-eyed person spots it on the list, that would be ludicrous.
§ Lawrie Quinn
I am listening carefully to my hon. Friend's references to subsection (5) Is there not also a problem with the reference to the "Secretary of State"? There is no reference to the devolved Administrations, and I presume that the way in which it is worded would remove its consequences for Scotland and Wales. Would that be a correct interpretation?
§ Mr. Dismore
I will need to check what the Bill says, and I think that my hon. Friend is right. Now I see that under clause 3 of the existing Bill, the Act would extend only to England and Wales. I know that that issue comes up, so at the moment there is no need to consult the devolved bodies. The problem is that we shall end up with a position in which different law applies in different places.
Let me give my hon. Friend a good example of what the complications might be. Let us suppose that a school party from London decides to go on an outward bound course in Wales, in Snowdonia, or in the highlands, and the bus crashes on the border, or—
§ Mr. Dismore
Or if, as my right hon. Friend comments—helpfully, for once—it straddles the border, does this law apply or not? We do not know.
§ Mr. Dobson
It would depend exclusively on where the alleged negligent act took place. Unless the body of the person concerned was itself straddling the border, there would be no complication.
§ Mr. Dismore
That is an interesting legal question, and I could go into a long argument about where the tort was committed, and when it was complete. But that would be going too far down the highways and byways of the roads between here and Wales, Madam Deputy Speaker. The fact that the Bill does not extend beyond England and Wales, however, creates additional complications.
That, I hope, has done for new clause 29. I now want to turn to my amendments—I am afraid that there are a lot to get through. Let us start with new clause 3, and in that context we can also consider new clauses 25, 12 and 17 and Government new clause 30. All effectively address similar issues. New clause 3 seeks to exclude the operation of the Bill from cases involving fatal accidents. New clause 12 seeks to exclude cases of maximum severity. New clause 25 has similar provisions. New clause 17 produces an alternative whereby the Bill would apply only to cases that were effectively in the fast track.
1694 If people thought that the seriousness of the consequences of an accident occurring were such that they could not bring a claim—which goes back to the point about the counter-intuitive nature of the Bill—and that were little Johnny to go on an outward bound course and die there would be no legal redress, they would be horrified. They would not let little Johnny go. In fact, the legal redress in such circumstances is minimal: there is a bereavement payment of about £7,500, and funeral expenses are paid. It has always been, and remains, cheaper to kill than to maim.
Let us suppose that little Johnny went to a children's rugby match that was not properly supervised by the referee, and it got out of hand. Let us suppose that little Johnny was left paralysed as a consequence of a collapsed scrum that should have been dealt with by the referee. Again, people would be horrified if that paralysed boy were left with no compensation and no one to look after him except his family. That, however, would be one of the consequences of the Bill as it stands.
We can of course argue about small-scale cases. I offered the hon. Member for Canterbury an olive branch in the form of new clause 17, under which the Bill would apply only to cases in the fast track in the civil courts. At present compensation is limited to £1,500, although there are arguments—misplaced, in my view—to raise it slightly. The new clause would exclude all the silly little cases that the hon. Gentleman talked about, but would still allow claims to be made by people who were seriously injured and the families of people who were killed.
I am sorry that, rather than embracing new clause 17, the hon. Gentleman seeks to resist it. It would be a travesty if the House passed a law removing the right of parents to make claims when their children are killed, and the right of children who are severely injured or paralysed to claim compensation so that they can look after themselves. The net result, I think, is that far fewer children will be allowed by their parents to go on expeditions of this kind. The hon. Gentleman says that the Bill will create more volunteers, but it will mean far fewer people for volunteers to look after. As for small claims. I have suggested an alternative, but the hon. Gentleman does not want to adopt it.
New clause 6 is relevant to a point made earlier by my hon. Friend the Member for Scarborough and Whitby. The argument here is not quite the same as the one that I applied to new clause 29(1), which deals with the test to be established. New clause 6 deals with the question of evidence, which the Bill leaves open.
§ Lawrie Quinn
I understand that if new clause 6 is not accepted, the Bill will allow a higher test of liability when providers have used a statement of inherent risk. The hon. Member for Canterbury (Mr. Brazier) has tabled amendments consequent on new clause 29. If new clause 29 were accepted, would not new clause 6 be unnecessary?
§ Mr. Dismore
The difficulty lies in new clause 29(1). If it had made the specification that I mentioned earlier, new clause 6 might not have been required; but we need to consider the test being applied, and we need to provide an opportunity to overcome the defence that might be advanced under new clause 29 by 1695 demonstrating, with the help of expert evidence, that what is being said is not correct. Expert evidence can be very helpful in cases of sporting or outward-bound injuries. When I was practising, I dealt with cases in which such evidence had to be used—one involved horses, another motocross—to explain what was right and what was wrong, and what constituted a test.
If new clause 29 is passed new clause 6 will of course become otiose, as clause 2(6) of the Bill will be deleted if the hon. Member for Canterbury gets his way with his new clause and one of his amendments. But the argument remains valid, even if new clause 6 has to fall because new clause 29 goes through. As has been said, these matters should be argued through in Committee, given the many faults that have come to light.
§ Lawrie Quinn
Assuming that I have understood my hon. Friend's argument correctly, if there were a failure to maintain, or to use in accordance with the manufacturer's instructions, equipment used in the activity in question, the need for an expert review of the consequences of that failure would be paramount.
§ Mr. Dismore
My hon. Friend is right, and he has identified the issue in a nutshell. We need to consider the technicalities of what is or is not suitable for the purpose in question; indeed, I have some amendments that deal with that issue in a little more detail. So there are problems that could be addressed by new clause 6, but I assume that the hon. Member for Canterbury will resist it.
New clause 7 is extremely important. The normal presumption and basic legal maxim is that people are expected to know the law, and that if they fall foul of it that is their problem. However, potentially the Bill will strip people of their rights, and notwithstanding the question of clause 2(3), the principle still holds: it is extremely important to ensure that if people's legal rights are being removed, they are aware of that fact before engaging in activities in respect of which such rights are being excluded.
We cannot rely on the organisations themselves in that regard; if we do, there will be the paper chase to which I referred earlier. If the provision goes through in the existing or a similar form and new clause 7 is not accepted, the Secretary of State will have to ensure that the terms of it are widely known. I am afraid that, as a consequence, the Bill might have the counter-intuitive effect of discouraging people from engaging in such activities. But if we are to take away these important legal rights, action will inevitably have to be taken to ensure that the public know what is happening.
I turn to new clause 11. Under the Bill as it stands—that is what we must consider, because no amendment to it has so far been approved—it is effectively a defence to claim for personal injury if a statement of inherent risk is issued. If so, the mirror image ought also to apply: if there is no such statement, a court ought to be able to take that fact into account. Doing so would demonstrate that the organisation concerned had not applied its mind to the risk involved in the activity in question, and that its approach had been somewhat cavalier.
1696 It is important that risk assessments be conducted, and minimising risk is clearly the right thing to do. Of course, we cannot eliminate risk entirely, but we can do a lot to reduce it. Such a reduction in risk could in part be demonstrated by someone's having thought about the issue, and having produced a statement of inherent risk.
§ Lawrie Quinn
I intervene again in an attempt to understand the true purpose of new clause 11. My hon. Friend seems to be suggesting that a preliminary visit and test of the volunteer activities in question would be necessary, which would probably involve the volunteer leader's replicating the activity in advance. Would not such reconnaissance involve an inherent risk to the volunteer leader?
§ Mr. Dismore
My hon. Friend makes an interesting point, but I suspect that such people would still be covered by employer's liability provisions under the Health and Safety at Work, etc. Act 1974, depending on whether they are employed. The real issue is the need to conduct proper assessments. If a proper assessment is done, there is no problem with producing a statement of inherent risk, subject to some suggestions that I shall make later about what should be in it. If there is no statement, the inference has to be that a proper assessment has not been done. In defeating a claim, a court should be able to take into account the existence or otherwise of a statement. If in the civil courts a risk assessment is required—for example, under health and safety management regulations—and one has not been conducted, the absence of such a statement is in itself evidence that can be used in supporting a claim. What I am suggesting in new clause 11 is the mirror image and it is intended to level the playing field, to use the sporting analogies again.
I dealt with new clause 12 when I spoke about exclusions and the size of claims, so I want to move on to new clause 16. It takes us back to some of the points that my right hon. Friend the Member for Holborn and St. Pancras made earlier. In particular, there is the blurring of distinctions between organisations that people generally consider to be voluntary—the scouts and guides, for example—and those that are effectively big business masquerading as voluntary organisations.
I mentioned earlier that there are about 4,500 charities with a turnover of more than £1 million. I do not believe that they can, by any stretch of the imagination, be seen as proper voluntary organisations in respect of what the Bill is trying to achieve. If there is a contract to provide services or a course and someone pays money in return for which a course is signed up to—a bit like a package holiday, I suppose—I think that we are looking at a proper commercial transaction, which should be backed by insurance and proper legal rights for the people who attend the course. After all, someone is making money out of it. Reducing the insurance premium, as the hon. Member for Canterbury wants, is allowing someone to make even more money out of it by reducing the rights of the people involved. It becomes a recipe for cutting corners and allowing people or children to be injured. That cannot be right. 1697 First and foremost, if we go back to the basic principles of what the Bill is trying to address, we should look into the informal arrangements that would apply and not look at cases where money changes hands in accordance with usual commercial transactions.
§ Lawrie Quinn
In another attempt to appreciate the thought processes behind new clause 16, may I take my hon. Friend back to his home town of Bridlington, where the Royal Society for the Protection of Birds, a charity, runs cruises that allow people to watch the birds off Bampton cliffs? Does my hon. Friend believe that, under the proposals, people involved in that activity would be waiving their right to any compensation if there were a mishap—hopefully there never would be—during the course of the voyage?
§ Mr. Dismore
My hon. Friend could well be right because there is a contractual arrangement in place. On the other hand, I have occasionally gone to watch the birds at Bampton cliffs and paid a donation to see them. That is different, because there is no contractual arrangement in that case. If I were to trip up and fall in that context, that would be hard luck, but where there is a commercial arrangement in place, that is a very different kettle of fish and we are effectively talking about business. I believe that new clause 16 deals effectively with that point and I am sorry that the hon. Member for Canterbury feels unable to accept it.
New clause 18 deals with the question of occupiers' liability. New clause 26 is also relevant. There are two pieces of legislation that apply—the Occupiers' Liability Act 1957 and the Occupiers' Liability Act 1984. The 1957 Act obviously came first and it imposes a series of duties on a landowner. What I am concerned about is that one cannot really say that a landowner or farmer is a volunteer in this context. The law imposes certain duties, particularly in relation to children and also to trespassers. An occupier is expected to guard against risks on the land. If occupiers' liability legislation were not applicable, a landowner could have the most dangerous pieces of equipment lying around on his land and people could be injured by it, but the landowner could not be sued. In certain circumstances, that might be appropriate, but a blanket exclusion—which is what the Bill in its present form would provide—cannot be right. The law contains safeguards For instance, the case of Tomlinson v. Congleton, in which someone dived in a lake, addressed the issue of trespassers. It had a robust outcome in the House of Lords, where the trespassers lost. However, children can be mischievous, and if the Bill were to remove liability under the Occupiers Liability Act 1984—new clause 18 would ensure that it remained—an important safeguard would be lost.
New clause 19 may seem otiose, but I shall explain the thinking behind it. It deals with vicarious liability, including for psychological injury, as a consequence of criminal conduct. I had in mind child abuse cases. Everybody accepts that child abuse is criminal. At present, a charity that employed someone—a worker in a children's home or, rarely, a youth or scout leader—who was engaged in child abuse could be sued, through the vicarious liability provisions. However, as the Bill is presently phrased, such cases could not be brought against the organisation employing or organising the 1698 volunteer to look after the children. The Bill does not deal with the question of vicarious liability for criminal conduct, and that is a glaring omission.
New clause 20 proposes that local authorities should not be able to rely on the defence in the Bill, either as it stands or as amended by new clause 29. The argument is similar to that for businesses. The relationship between a voluntary body and a service user is different to that between a council and a service user. A council has a much higher standard to meet. It should set a good example and should not be able to rely on an artificial defence to avoid its liability.
§ Lawrie Quinn
Would my hon. Friend's definition of local authority be extendable to national parks? Many volunteer activities take place in national parks, and I am concerned that under the Bill they, too, would escape liability.
§ Mr. Dismore
My hon. Friend has spotted a flaw in my new clause and he makes an important point. If the Bill makes progress, perhaps it could be picked up in the other place. National parks are big business, and they probably would not be covered by new clause 19 or a later amendment on contractual relationships. I have tried to address the issue of scale in my amendments.
§ Lawrie Quinn
In England and Wales, some 8 to 9 per cent. of the land mass area is covered by national parks, so that is a large hole in the Bill's provisions.
§ Mr. Dismore
My hon. Friend makes an important point. As I recall, we have just announced another national park, extending the area still further. National parks might be caught by the provisions relating to land owners in new clause 18 on occupiers' liability, but the Bill goes beyond that. If the Bill were to progress, we would certainly have to look a little closer at that issue.
New clause 24 is about insurance, which we referred to earlier, although not in this context. The hon. Member for Canterbury suggests that if there is a proper system—whether a statement of inherent risk or the provisions of his new clause—insurance premiums would fall. I very much doubt that; insurance companies are out to make money, and if they are not making enough money from an organisation they will ratchet up the premium until it goes away.
The important thing is that insurance companies should not be allowed to pick and choose, which answers the point made by my right hon. Friend the Member for Holborn and St. Pancras. If insurance companies can pick and choose according to whether organisations have a statement of inherent risk, there will be a two-tier system. One might argue that that would drive up standards, but on the other hand it could create a huge paper chase. Who knows? However, we can be absolutely sure that if the Bill goes through, in its original or its amended form, insurers will start to take notice and ratchet up their premiums accordingly—unless they are prevented from doing so. New clause 24 would make the Bill insurers-neutral, so that they have no excuse to charge voluntary bodies more if they decide not to take the route currently outlined in the Bill.
We dealt with new clause 25 when we discussed excluding serious injuries. It would cover cases of, for example, paraplegia or severe brain damage. New clause 26 parallels new clause 18, with particular reference to occupiers' liability.
1699 There is quite a bit of meat in new clause 28, which is rather long. However, as subsection (3) of new clause 29 refers to risk and the net consequence of that is that a risk assessment should be conducted, I am amazed that there is no reference to conducting risk assessments in new clause 29 or the Bill as a whole. There is reference to the statement of inherent risk, but that could be written on the back of an envelope. As the Bill stands, no one has to undertake a proper process to check what the risks are.
New clause 28 sets out the basic strategy for conducting a risk assessment. First, it requires that such an assessment should actually be made, which is the starting point. It states that the assessment should try to identify possible harm to individuals and in subsection (1)(c) that it should complywith any rules, advice or guidance of any body governing the activity".As we have heard, there are many organisations looking after the interests of sport and dangerous activities and, as my hon. Friend the Member for Scarborough and Whitby said, they issue guidance and offer proper qualification arrangements and so forth. It is incumbent on people who organise or undertake such activities to ensure that they comply with that guidance, if they are to rely on a defence under the Bill.
§ Lawrie Quinn
New clause 28 is most important. In a previous life, I was very involved in putting together risk assessments for engineering. In general, they require a clear audit trail and a checking process, so is not my hon. Friend somewhat concerned about the fact that his new clause does not specify those necessary and important aspects, which would ensure that the risk assessment was verified and checked by a more experienced person?
§ Mr. Dismore
My hon. Friend makes an important point. Paragraph (d) in fact requires documentation of the risk assessment, so there would be a written record, and I would expect that a sensible professional body, such as is referred to in paragraph (c), would set out how an audit trail should be followed.
My hon. Friend will also note that I have tabled amendments that deal with setting up a proper audit trail, by keeping proper records and so on. No doubt, we will come to that amendment later.
It is also important to ensure that those who carry out the risk assessment know what they are doing. One of the general problems with health and safety is that people will sometimes do back-of-the-envelope risk assessments without thinking through how such assessments should be done. Again, that relates to the point made by my hon. Friend about the need for properly trained, qualified and experience people to be engaged in those activities. We do not want people bumbling along; they must do things properly. The important point is found in new clause 28(3), which says that the defence provided by new clause 29, if it is accepted, or the existing arrangements should apply if a risk assessment is not conducted properly.
1700 New clauses 30 and 31 were tabled by the Under-Secretary of State for the Home Department, my hon. Friend the Member for Slough (Fiona Mactaggart). I dealt with new clause 30 in my earlier remarks about excluded serious cases. New clause 31 is very important—I touched on the issue earlier—as it refers to people who have a legal disability. My hon. Friend does not use the formal definition of the term "legal disability", which may have been a better construction, but it is clear what she is getting at in referring to people who have "a learning difficulty" or "a mental disability".
So how can anyone in those circumstances be said to have knowingly accepted a risk, which is the requirement of new clause 29? If people have a mental incapacity under the legal definition or new clause 31, which sets out such things in more detail, the present law would say that they could not knowingly accept a risk. New clause 29(3) refers to
parents of minors suffering harm",but it does not deal with those who have a legal disability who are not minors—for example, carers, or whatever. My hon. Friend the Minister has identified an important lacuna in the Bill.
Under amendment No. 139, the Bill's promoter proposes to delete clause 1, which is the definitions clause. If clause 1 were substituted by new clause 29, the Bill would become a lawyers' field day because all those definitions would be at large. In amendments Nos. 104, 105 and 106, I suggest various definitions for the word "activity", on which the Bill, without the deletion of clauses 1 and 2, focuses. That word also features in new clause 29(2), in which the phrase "the activity concerned" is used, but nowhere do we see what the word "activity" means—other than in a generic recreational way, under the "for example" wording, which relates to the European point.
It would be far better if we said what we meant by the word "activity". I am not particularly hung up on any of the three definitions given. I offer three alternatives to the House. I should be happy if the hon. Member for Canterbury accepted any of them, but to leave the question at large, without offering any definition, represents woeful negligence on the part of the hon. Gentleman.
§ Lawrie Quinn
I thank my hon. Friend for giving way once again, but may I chide him for the drafting of amendment No. 106? In an earlier part of the proceedings, he went to some length to try to protect the Secretary of State from extra work. It seems somewhat illogical that, under that amendment, he is trying to give the Secretary of State some additional work. Regrettably. I will not be able to support that amendment if it goes to the vote.
§ Mr. Dismore
My hon. Friend throws my argument back at me. I am not particularly fazed by that, as I am offering an alternative. I think that we need a definition of "activity" and I have come up with a couple. I do not have access to my hon. Friend the Minister's legal team nor do I have access to the High Court judge to help me with my drafting that my right hon. Friend the Member for Holborn and St Pancras and the hon. Member for Canterbury mentioned. I have done my inadequate best 1701 as a personal injury lawyer to try to come up with a definition. Someone may well come up with a better definition, and that is why I have left the option open—as an olive branch to the hon. Gentleman—to allow the Secretary of State to come up with one.
§ Mr. Brazier
I am most grateful to the hon. Gentleman for giving way in the brief time that he has available for his remarks. Before he moves on from his rather hasty reply to the hon. Member for Scarborough and Whitby (Lawrie Quinn), I hope that he will pay full tribute to his hon. Friend for assisting him in this exercise in filibustering the Bill.
§ Mr. Dismore
I am absolutely shocked that the hon. Gentleman should suggest that I am filibustering. If I were filibustering, you, Mr. Deputy Speaker, or earlier Madam Deputy Speaker, would have called me to order long ago. I am trying to show the woeful inadequacies in the Bill and, as I understand it, I am perfectly in order to do so. If I were not in order and were filibustering, you, Mr. Deputy Speaker, would have said so and would have stopped me.
Amendment No. 106—my hon. Friend the Member for Scarborough and Whitby missed this point—is important because it does not define activities at large. It returns to the fundamental principle of the Bill by referring to amateur pursuits, as do amendments Nos. 104 and 105. I hope that that is what the hon. Gentleman is talking about.
As I said earlier, a real distinction can be drawn between the amateur pursuits and amateur volunteers that we want to encourage and the big businesses that masquerade as voluntary organisations and charities. They should be placed on the same terms as any other professional or commercial organisation, because that is what they really are. Amendment No. 104 refers to
amateur sport, adventure training, and any other … vigorous physical activity".If my hon. Friend is concerned about this issue, I draw his attention to the fact that amendment No. 105 would give the House an opportunity to have a say on this issue at a later date through regulations. Amendment No. 106 offers the hon. Member for Canterbury an olive branch to get on with things by leaving the matter to the Secretary of State.
Amendment No. 30 also relates to my concern about the masquerade—the volunteer who is not: the professional pretending to be a volunteer. I am trying to draw a distinction between genuine volunteers and those who have a contractual arrangement with the organisation concerned. They may have a contract for services and, if not a full employee, they may be hired on an occasional basis. They should therefore be treated somewhat differently. Amendment No. 31 contains similar terms.
Amendment No. 16 deals with the similar problem of the position of directors and office holders. Amendment No. 7 deals with the issue of setting out proper arrangements contractually for the number of hours worked per week to ensure that there is no fiddle around the edges in terms of overtime.
Amendment No. 8 deals with the position of genuine volunteers by limiting the defence—or extending it; it depends on how one wants to look at it—to those who 1702 work as volunteers and genuinely outside what they are paid to do rather than to those who are promoting a fiddle. Amendment No. 11 also deals with that, because we are all aware of the tactic of giving people "expenses" when one is really paying them to do additional work. It would put a cap on people receiving expenses to do additional voluntary work. There must be a limit. Otherwise, where would we be with the Inland Revenue and national insurance? The Bill's present wording might offer a way round that.
Amendment No. 13 seeks to ensure that the charities covered are properly registered. The word "institution" is very vague, and the amendment is an attempt to make a little more sense of it. Amendments Nos. 10, 15 and 14 try to deal with people who are paid employees. They seek to clarify whether somebody is an employee and whether, if they are, they are entitled to rely on the defences in the Bill as it stands, or as it would be amended if the new clause were accepted.
Amendment No. 107 makes the point that, if something is a business, we should say so and not allow it to rely on a defence that is designed for the Scouts, Girl Guides and other voluntary bodies. Business is business, and people should not be allowed to make a profit out of the defence set out in the Bill. As I mentioned, 4,417 registered charities have turnovers of more than £1 million. I do not know how many have turnovers approaching £1 million or how many other such organisations have similar turnovers.
Amendment Nos. 128 and 1 would exclude schools, youth clubs and youth organisations. We heard earlier about problems with regard to schoolteachers who do not want to carry out activities. That is nonsense, as they are protected by insurance. A very different relationship arises with regard to a school and its pupils—I am not sure whether it is contractual, but it is certainly quasi-contractual—from the relationship that arises with regard to the wider organisations that we have talked about. The exclusion set out in amendments Nos. 128 and I would at the very least protect children from inability to bring a claim if they are injured. Of course, such provision would not apply to adults, as they would not participate in activities organised by schools, youth clubs or educational establishments.
I am not myself entirely convinced by amendments Nos. 2 and 1. Amendment No. 2 deals with churches and religious establishments. The problem was drafting an appropriate definition. Some churches are big business, while others are not, but the House should address the issue. I do not have the same concern about housing associations, which have changed dramatically over the years. About 25 years ago, I was on the board of Soho Housing Association, a small organisation that was true to the original arrangements for such bodies, under which they were small organisations designed to address particular housing needs for particular communities. Subsequently, they have grown into big business. Only this weekend, a housing, association in my constituency was organising a huge event. As most such organisations are still charities, there could be a defence under new clause 29 in respect of anyone who was injured at such an event.
Amendment No. 4 deals with the question of organisations established by central Government and local authorities—or quangos, whether local or national. A different relationship comes into play in 1703 respect of a quango set up by central Government. Some quangos are very big indeed, but may technically be charities or voluntary organisations within the definition in new clause 29. Again, it would be wrong if they could rely on the defence set out in the new clause.
§ Mr. Dismore
There is not a distinction, but there is a question of scale, which amendment No. 5 addresses. It relates to organisations with a turnover in excess of £100,000, which is a reasonable cut-off figure between business organisations and genuine small charities. Together, amendments Nos. 4 and 5 answer my hon. Friend's concern.
Amendment No. 6 is important. It excludes from the defence in the Bill organisations involved in training with firearms and other weapons. We should not license people to a lesser standard when they deal with firearms, which is a point that also relates to later amendments on cadet forces. There are strong and serious arguments that firearms organisations should not be allowed to use that defence, because firearms are so dangerous.
Amendment No. 26 relates to the definition of "volunteer". It specifies that we are trying to protect the individual rather than the organisation. If we are talking about the promotion of volunteering, we must consider the natural person rather than the inchoate organisation.
Amendment No. 32 is another way of trying to deal with potential fiddles. If a big business says, "Okay, we will give this organisation x pounds", or, "We will sponsor this particular event", knowing at the back of its mind that it will return to pick up a fat contract, it is effectively trying to obtain commercial benefit from a volunteering operation, which is wrong.
Amendment No. 33 deals with expenses—I dealt with that argument in a different context, so I shall not enlarge on it now—and provides the alternative of a fixed figure.
Amendment No. 20 deals with farmers and landowners, and it provides an important safeguard that ought to be used—it probably is used. If farmers and landowners cannot rely on the Bill, the voluntary organisation concerned should at least have entered into an agreement with the farmer as to what should or should not happen on the farmer's land. It also provides a clear distinction between the farmer and the voluntary body if an accident occurs.
Amendment No. 21 says that organisations should be able to rely on the defence provided in the Bill only if they are doing something that they are competent to do. We could end up in a position in which organisations engage in activities that are beyond their competence. Because of the new defence in law to claim for compensation, one can imagine organisations stretching beyond what they normally do with impunity, which would put people at risk.
Amendment No. 19 deals with education, which I have covered.
1704 Amendment No 22 is worth spending a little time on because it removes the protection afforded by clause 1 to cadet forces. It would be wrong to exclude professional bodies such as cadet forces, air training corps, armed forces organisations and the police, because that would be to expect them to rely on a defence that is of a far lesser standard than at present, which would encourage shoddy behaviour and lower standards.
Amendment No. 23 would protect genuine organisations along the lines that I have discussed, as would amendment No. 24, while excluding big business. Taken together, amendments Nos. 24, 25, 148, 35 and 34 deal with the whole area of education and business.
Amendment No. 130 harks back to my amendment on the definition of activities. At line 22, the word "services" appears. It is not defined or mentioned anywhere else—it suddenly creeps in out of nowhere. As it would be far better to have consistent language throughout the Bill, I suggest that the word "services" should be replaced with "activities", which already appears in new clause 29 and would appear elsewhere were the new clause not accepted.
Amendments Nos 36, 37 and 38 also have an educational element but cover different aspects. Amendment No. 36 would leave out schools and colleges, while amendment No. 37 would leave in further education and higher education. I suppose that I might be arguing against myself here, because further and higher education is more likely to involve adults than children, yet my school-related amendments are designed primarily to protect children. Amendment No. 38 deals with the question of out-of-hours activities, drawing a distinction between those activities and activities within the school day.
§ Lawrie Quinn
Earlier, my hon. Friend defined "minor" as covering those up to the age of 18. Does his amendment imply that he is more comfortable with defining it as those up to the age of 14, since further education can generally start from around that age?
§ Mr. Dismore
I have a later set of amendments dealing with the question of age and at what stage a defence may be used to defeat a claim by a minor, so we could return to the matter at that stage. Perhaps I am adopting a belt-and-braces approach. My hon. Friend raises an important point about the age of responsibility and the age at which a minor becomes aware and can accept and understand risk. I accept that I might be arguing against myself in relation to further education and higher education activities. I offer that olive branch to the hon. Member for Canterbury.
Amendment No. 140, which stands in the promoter's name, would delete clause 2. I find that surprising, given that it is the essence of the Bill, but that is his choice.
Amendment No. 41 tries to redefine, or to specify more effectively, what a volunteer is. It would mean that this part of the Bill would apply only to real people, not to organisations in the more general sense.
Amendment No. 121 deals with the qualifications of the individual volunteer who may be responsible for issuing a statement of inherent risk. That goes back to a point that my hon. Friend the Member for Scarborough and Whitby made earlier: we have to be sure that, if a defence is to be reliable, the people who conduct the 1705 activity know what they are doing. It is important to ensure that they have undergone the appropriate training and have the relevant qualifications. That could simply mean a certificate that the Scout Association issues for different levels of activity or a more important qualification. However, it is important that, in each case, the person is properly insured.
Amendment No. 39 deals with the person to whom the statement of inherent risk should be issued. The Bill contains a lacuna because it provides for the statement to be issued to the person concerned and does not draw a distinction between an adult and a minor. Little Johnny, aged 12 or 13, may be given a statement, but we all know what happens to letters on the way home from school, and he could fail to deliver it to his parent. If little Johnny is given a letter by the scout master or guide leader, it is important to overcome the problem of his not taking it home. In the case of a minor, the statement should be issued to the parent or guardian. That is basic common sense, and I hope that the hon. Member for Canterbury will accept that.
Amendment No. 40 is a clarification. We currently have the broad phraseology, "under the control", which the amendment would replace withadministered or managed by or".That is a little tighter. Amendment No. 42 again covers a real volunteer rather an inchoate volunteer in the form of an organisation.
Amendments Nos. 122, 43, 125 and 138 deal with risk. The Bill provides for the statement of inherent risk to identify onlythe types of risk likely to be encountered".That is very general. I am worried that it is far too general. If we consider the Lyme bay tragedy, there was a general risk of drowning but the activity involved a series of other risks, which might not have been appreciated under the Bill. Instead of simply discussing the principal risks, it is important that a proper risk assessment is conducted to identify all the risks. That is proper health and safety. If the risks have all been identified, there is no reason why the statement of inherent risk should not set them out. It is therefore wrong to allow the relevant organisation to pick and choose the risks that it specifies; it should set them all out after conducting a proper risk assessment.
The definition of "inherent" is wrong and we should consider the risks that are associated with an operation. In the Lyme bay tragedy, they would have included the fact that the instructors were not properly qualified.
Amendment No. 44 again fills a lacuna in the measure, which refers to "personal" in the context of personal injury but does not deal with psychological injury. It should also be included for reasons that I advanced when I talked about the Warsaw convention earlier.
Amendment No. 124 deals with the measure's wording about risks that are "likely to be encountered". That constitutes a subjective assessment. The amendment would replace those words with, "which may" be encountered. That is an objective assessment. "Likely to be" encountered means that someone has a think about the matter and says, "Well, maybe we will, maybe we won't." However, "may be" encountered is a more objective test, which would be subject to the "man 1706 on the Clapham omnibus" approach. In other words, it is a broader approach, and I believe that the phrasing is far better.
I have already dealt with amendments Nos. 125 and 138 and I do not want to repeat myself.
Amendment No. 46 deals with the suggestion that civil liability ought to be excluded from the provisions. Line 41 on page 2 of the Bill deals with the exclusion of criminal liability, and I have already touched on that matter in the context of vicarious liability in regard to child abuse. Here, however, we must ask ourselves what we are trying to do. Are we trying to take away people's rights or to make people more aware of the risks that they are expected to undergo? I would be a lot happier if the Bill were effectively saying to people, "Okay, these are the risks that you are going to undergo. Think about what you are going to do and conduct the activity more safely, but this is not going to affect your legal rights in the end." That would be a far fairer and more appropriate way of approaching this issue.
If, as a result of having to prepare a statement of inherent risk, the organisers of these activities are thinking about the risks in a much more focused way, and if that statement is issued to the person who is going to undergo the activity—or their parents, which is not provided for in the Bill as it is currently phrased—there would be a coming together of an analysis and an acceptance of those risks. That would make the activities more suitable and more understandable, and in the end, people would know where they stood when they undertook them. The dangers would have been explained to them and, ultimately, that would make the whole operation safer. That would be a far better way of dealing with this issue than taking people's rights away.
Amendment No. 126 deals with compulsory activities. The Bill is over-prescriptive in this regard. I cannot see anything wrong with a statement of inherent risk being issued for activities that are compulsory, if we accept the basic premise that I have just outlined. We are trying to get people to be more aware of the hazards and risks, and just because an activity is compulsory, it does not mean that it is less risky. However, if an individual does not receive a statement, because they do not have to, or because they are prevented from doing so, they might not appreciate the risks involved. We could end up with the inverse argument that, because an activity is compulsory, the defences do not apply and there is no need to issue a statement of inherent risk. That seems rather back to front. Statements should still be issued, even if no defence is created, because it would make things a lot safer.
§ Lawrie Quinn
It is often mandatory for people to undergo certain activities to gain sufficient experience to progress to a higher level in voluntary organisations the level of leader, for example. How does that fit in with this definition of "compulsory"?
§ Mr. Dismore
My hon. Friend's question refers to some of the points that I made earlier. The Bill currently provides a defence in relation to voluntary activities. However, volunteers might also be engaged in 1707 promoting compulsory activities. I think that I am right in saying that school sports are compulsory, for example, and a volunteer could come in to help the school with compulsory games. As the Bill stands now, if the games were voluntary—out-of-hours games, for example, such as extra rugby or football training—a statement of inherent risk would have to be issued. If exactly the same games were compulsory, however, no such statement would be needed. That is a bit back to front, because we should be concerned with the nature of the activity rather than the question of compulsion. We are talking as much about protecting the person engaged in the activity from being hurt as about protecting the volunteer from being sued. The hon. Member for Canterbury has missed a trick in terms of the way in which the Bill deals with compulsion.
A similar argument might be made in relation to amendment No. 127, so I shall not repeat myself. Amendment No. 119 seeks to address the fact that the Bill overlooks the question of peer group pressure among young people to engage in activities. Leaving out the word "obliged"—with its suggestion of compulsion—and substituting "invited" would address that problem.
Amendment No. 120 is very important. I think I am right in saying that a third of the accidents in which people are injured while undertaking those voluntary activities are road accidents involving vehicles carrying someone on the public highway. A third of them involve skiing and similar accidents and the remaining third are a mixed bag. Those are the latest figures I have seen.
For the life of me, I cannot think why it is appropriate to exclude road accidents by providing this additional defence. Cars, vans and other vehicles have to be insured—that is the law—in case of accidents that cause personal injury. Indeed, if they are not, there are fall-back arrangements with the Motor Insurers Bureau. I cannot understand, therefore, why there should be under the Bill a defence for somebody who causes a road crash and injures someone.
Often, injuries caused by road accidents are far more serious than those caused in other accidents that occur at, for example, scout camp. The most dangerous part of the voluntary activity might be getting to and from the venue rather than participating in it. For those reasons, I cannot for the life of me understand why we cannot have an exclusion from this defence for road accidents.
The amendment also refers to the Unfair Contract Terms Act 1977. I will not detain the House with analysis of that Act, although I have tabled an amendment that relates to it. If there is time and we reach it, I shall develop my arguments at length as to why the defence should not apply to cases in respect of that Act. Essentially, they are those where money changes hands, but written exclusions may also be involved. We will return to that.
Amendment No. 114 is also a tidying-up exercise. The word "indicate" appears in the Bill. How are we to "indicate"? With smoke signals? That might be how it is done at scout camp. I think that we need a much clearer definition, and the word "state" is much more understandable.
1708 Amendment No 115 comes down to the question of supervisory skills. Again, we return to the question of ensuring that the individual concerned has the formal qualifications and training. As things stand, somebody who may be engaged in supervising what may be inherently dangerous activities may be a beginner. There is nothing here to suggest that the volunteer should be supervised or have the appropriate qualifications for the activities concerned.
That brings me to amendment No. 48, which suggests that if one is to be in charge of dangerous activities, it follows that the individuals concerned should have the appropriate qualifications issued by theprofessional, sporting or other umbrella organisations with recognised experience in the fieldwith which the organisation in question is involved. Of course, one could be too prescriptive here, but it is extremely important that people have the right qualifications if they are to be put in charge of children.
Amendment No. 49 deals with the question of a risk assessment. I have already mentioned the importance of risk assessments, but not what should happen when they are done. It is a lacuna in the statement of inherent risk that there is no reference to the fact that a risk assessment has been done—or not, as the case may be. If my amendment were accepted, the absence of a risk assessment would highlight for parents the fact that they should ask, "Hello, what's going on here?" A risk assessment ought to be done.
Furthermore, we should know not only that a risk assessment has been done, but who did it and when. Parents, if they are to sign away their children's rights, which is what the Bill asks them to do, are entitled to know when the hazards were last inspected and whether the person who did the check knew what he was doing. That is the essence of amendment No. 49.
Amendment No. 50 is a little more specific in this context, and it deals with the question of safety inspections for outdoor activities. Most of what we have been talking about relates to those. Outdoor activities may involve very different hazards. If a safety inspection is done on premises or land outside, it is important that the risk assessment and the statement of inherent risk should specify when it was carried out. For example, if one were to assess a ramble across the moors, whether that assessment was done at night or in daylight would make a big difference, as would whether it was done in midwinter or summer.
When I was in the sea scouts many years ago, I went on what is known as the Lyke Wake walk, which I am sure that my hon. Friend the Member for Scarborough and Whitby will know. It is 42 miles across the north York moors. I am not sure that there was a risk assessment in those days, but I emerged unscathed but rather tired—
§ Mr. Dismore
And with a coffin badge. During that walk, we experienced virtually every form of weather, from snow to blinding fog, from bright sunlight to rain. We started at night and finished in daylight. Very different risks and hazards arose along the way. Members have drawn from their experiences of such activities, and there is no reason why the Lyke Wake 1709 walk should not be conducted safely If a risk assessment is done, however, the weather in which it was done needs to be made clear. When we went on the walk, we debated whether the weather was suitable. because others in the party had done the walk during fine weather in midsummer, and we were doing it in the autumn in rather different conditions. Thai is an important consideration for outdoor activities, because what may be a perfectly safe activity in one circumstance may not be in another. If parents are being asked to sign away their rights to bring an action. they are entitled to know that.
Amendment No. 51 deals with the question of equipment. The question of safety helmets was mentioned earlier in relation to a case that succeeded because a safety helmet did not fit properly. There was an argument about whose job it was to make sure that it fitted properly. It is not just a question of whether it fits, however, but of whether it works. There must be a proper system of risk assessment. involving testing equipment from time to time to make sure that it still works. That assessment must include whether the rope is frayed, which can happen inside as well as outside, and who did the testing.
In the context of the tin hat, we can consider amendment No. 52, which provides for two different eventualities. The first part deals with the position in which the equipment is provided by the organisation concerned, and the second part deals with the position in which individuals are expected to provide their own equipment. It goes without saying that if a voluntary organisation takes it on itself to issue personal protective equipment, whether a tin hat, thermal underwear or ropes for abseiling, it needs to be clear that the equipment has been properly tested, and that when it was tested, in the case of a tin hat, it fitted properly. If that had been done in the case mentioned earlier, the organisation may not have been sued.
Of course, the equipment must also be fit for purpose. A helmet that is suitable for cycling may not be suitable for mountaineering, and, I suppose, the contrary is also true. In relation to individuals providing their own equipment, it is important in those circumstances that the voluntary organisation tells them what sort of equipment they should have for the activity. The best way of doing that is by reference to British standards specifications, which provide clear guidelines—the kite mark on the box is the best guide as to whether a helmet for mountaineering is fit for purpose. One must also make sure that it fits and that it is the right equipment for the exercise. Risks occur when that is not done.
My hon. Friend the Member for Falkirk, West (Mr. Joyce) mentioned earlier the example of people going hiking in Wales who were at risk of hypothermia because they were improperly equipped. Why were they improperly equipped? Was it because they had not been told? Was it because they had been told but only in general terms? I am sure that my hon. Friend would agree, however, that if one is undertaking a dangerous activity in potentially bad weather, one must be properly equipped. The best way to ensure that is to set out in advance a proper list of what people should have and the standard of equipment that should be provided. Amendment No. 52 addresses that point, which is currently woefully lacking from the Bill.
1710 1.45 pm
Amendment No. 72 deals with insurance. Nothing in the Bill makes insurance compulsory. It is not currently compulsory, although it is advisable for voluntary organisations to take it out in the circumstances that we are discussing. The only insurance that is compulsory covers motor accidents in relation to the vehicle, and employers' liability insurance in relation to employees—not volunteers. There is no requirement in law for public liability insurance to cover any activities engaged in by voluntary organisations, and I am sure that some organisations will take a chance and not obtain any.
If individuals are asked to accept a statement of inherent risk, they are surely entitled to know that the insurance has been properly organised, and to know who the insurers are, the policy number, the extent of the cover and how they can look at the policy, if they wish, to establish how they can make a claim easily if someone is hurt in circumstances in which an action may still apply, despite the reduction in their rights for which the Bill provides. I know from my experience of legal practice that one can have the devil's own job tracking down the insurers, and that the organisation against which the claim is being brought may not be as helpful as it should be in providing the necessary details. Amendment No. 72 makes a vital improvement to the Bill.
I spoke earlier of the importance of the Secretary of State making it generally known to people that the Bill would take away their legal rights, but there is nothing like reminding them at the time as well. I return to Lord Denning's definition of "volenti". People who are being asked to waive their legal rights must be clear about what they are letting themselves in for. Amendments Nos. 102 and 103 deal with that. At present, the Bill does nothing to ensure that children, parents or any other adults are aware that they will have less protection from the law if they are injured, because it does not require organisations to tell them. I think that that is absolutely wrong.
Amendment No. 116 deals with instructions. The Bill currently provides
that the person undertaking the activity shall obey the instructions given by the person … providing the activities",but it does not say what will happen if the instructions are not obeyed. Nor, for that matter, does it say what the instructions are. "Put your hand in the fire" is an instruction—not a reasonable instruction, not a lawful instruction, but an instruction. What happens when little Johnny is sitting in front of the camp fire? Amendment No. 116 says that if the instructions are to be obeyed, they must be reasonable and lawful. My hon. Friend the Minister suggests inserting the word "reasonable" in her amendment No. 153, so she is obviously on the same track as me. I suppose it could be said that the word "lawful" in this context is tautological, but I think it important to have belt and braces. It is possible, after all, that a reasonable instruction might not be lawful.
Amendment No. 53 deals with the question of what happens if people do not follow the instructions. Are they told off? Are they fined? Are they sent home with their tails between their legs? That is not made clear in the Bill. When safety is involved, it must be driven home to people that if they do not do what they are told, they 1711 will be sent home, or left behind, or something. At present, the Bill just says that they must do what they are told.
The Bill refers to "the instructions given", but does not say how they are to be given. Safety instructions can be given in a number of ways. When we board an aeroplane, we are given instructions. The stewardess goes through her little pantomime. She shows us how to put on the oxygen mask and life-jacket, and where the exit doors are. In addition, each passenger seat has in front of it a chart, to which one can refer. So instructions are given in two different ways—indeed, aviation law lays down that such instructions be given verbally and by demonstration, and on the chart. However, the Bill refers simply to "instructions". How they should be given or carried out is not specified; nor does it say whether they should be given in writing or demonstrated. As it stands, one could simply say, "Oh by the way, be careful and don't fall down the hole."
§ Lawrie Quinn
The amendment to which my hon. Friend is referring implies even more red tape, an audit trail, an inspection, and a licence to perform such services, which presumably could be taken away if such standards were not maintained. How would enforcement work in practice?
§ Mr. Dismore
Regrettably, the enforcement is what will happen if there is an accident. In the end, it will be for a civil court to test whether the defence provided by the Bill can be relied on by the defendant, which is the voluntary organisation concerned. A court would then have to determine whether the correct steps had been taken, and whether the statement of inherent risk, or the risk assessment, had been properly drafted.
The hon. Member for Canterbury is trying to taking away people's rights, but in doing so we have to make it absolutely clear which rights are being taken away, and ensure that people fully understand the position they are being put in. On the other hand, one can see such statements of inherent risk as a positive thing, because they remind people that what they are being asked to do is dangerous. They make people think about the situation and comply with the instructions given. Of course, if the proposed statement of inherent risk works, there will be far fewer accidents because people will be behaving safely, and they will understand the risks much more clearly because they are set out in writing. They will understand that if they undertake such activities they will be unable to sue, and that if they disobey orders they will be sent home or left behind. All such provisions, which are vital, are currently missing from the Bill. We should not try simply to remove people's rights; we should be trying to prevent accidents.
I am a little concerned about the provision that amendment No. 57 would delete. It effectively imposes third-party duties on somebody who is not party to the arrangements. Imposing third-party duties on a parent is a serious issue, and in that regard the amendment speaks for itself.
I turn now to the first of a series of amendments that deal with age limits, an issue to which my hon. Friend the Member for Scarborough and Whitby referred in an 1712 intervention. At what stage should someone be able to sign away their own rights, and at what stage should a parent be able to sign away the rights of their children? In taking away people's rights, one should err on the side of caution. In terms of the complete removal of rights, I have suggested the age threshold of 18.
§ Mr. Dismore
It depends on the activity in question. The problem is that the Bill as drafted applies different age limits for different things, and children are expected to appreciate different risks at different ages. I am happy to accept the legal age of majority—in fact, it is 18—for all things, but in practice one could have the sliding scale of appreciation of risk proposed by the hon. Member for Canterbury, which begins at age 11 and ratchets up to 16. I would prefer a scale running from 14 to 18, because one should err on the side of caution when asking for an appreciation of risk and taking away people's rights.
We then come to amendment No. 117, which takes us back to the duties of a parent. We heard earlier about the townie who does not understand country ways and a caving accident. The problem is that, although an adult who is experienced in the ways of the country may understand the risks townies may not; and giving a risk assessment to the parent is not necessarily good enough. I believe that the voluntary organisation must ensure that parents themselves understand what is involved in the activities so that the parent can then explain it to the child. We are imposing an obligation on the parent to make sure that the child understands what is going on, but if the parent does not understand it in the first place, how on earth can it be explained properly to the child? There is a double duty on the organisation to ensure that parents fully understand as well as the children. That is another matter left out of the Bill.
§ Lawrie Quinn
Does it not also pose the question of the potential age of the leader of the activity? In many voluntary young people's groups—scouts and guides, for example—part of the challenge for the young person is to advance by taking on more responsibility. We could end up with a contradiction if the young person leading a group activity does not have enough competency in the Bill's terms.
§ Mr. Dismore
My hon. Friend has hit on a very important point. I recall being in the sea scouts and I was often engaged in leading activities about which I knew far more than the parents. I recall one occasion when I was about 17 and I cancelled a sailing expedition that I was leading because the weather was so bad. A parent came up and played hell with me because I had cancelled the activity. He simply could not understand why I had cancelled it. 1 told him that there was a force 9 gale blowing and he said, "What's that got to do with it?" That is a clear example of what my hon. Friend is illustrating: sometimes people do not think things through because they do not understand the risks. Sometimes someone under 18 might have to explain things to people who are over 18. I have not tabled an amendment to cover that point, which is unfortunate, 1713 because my hon. Friend has made a very important point. If the Bill progresses further, I hope that it might be dealt with in the other place.
I was dealing with amendment No. 117. Amendment No. 118 is an alternative to amendment No. 60, which deals with imposing duties on a child. I am extremely concerned about the extent to which we may be doing that.
Amendment No. 61 effectively deals with the risk of a creeping defence. I am trying to specify that a defence could apply only to risks that have been exclusively identified in the statement—not to unidentified risks that go beyond that. If we are to take away legal rights, exclusivity—not open season—should be the nature of the game. The Bill currently allows open season to extend beyond the risks that people have undertaken to risks that they might not be aware of because they have not been specified in the risk assessment.
Amendments Nos. 64, 62 and 65 deal with the question of exceptional risks, not regular ones, if I may put it in those terms.
Amendments Nos. 112 and 67 deal with an important aspect of the Bill. The question is when the statement of inherent risk should be presented to the person undergoing the activity. As things stand, it would only have to be done once and then people would not be reminded about it again. That is a major concern. As I said earlier, we all yawn when the air hostess does her little pantomime, but it is done every time we get on a plane—and for a reason. We may know the warnings back to front, but we are reminded of the safety issues involved and what we should do in an emergency. The circumstances are similar for dangerous activities. If someone undertakes a dangerous activity—perhaps every six months or so—they should be reminded on each and every occasion of the safety precautions and the assessments that have been made. I am very concerned that the Bill contains no such obligations.
Amendment No. 113 requires the statement to be updated in advance of every activity, because risks change. In the hiking analogy, the risk assessment done in the summer would clearly not apply to hiking in the winter. Therefore, it would be appropriate for a risk assessment to be prepared in advance of every activity. It is also peculiar that people would not be required to date the forms at the time that they signed them. That is a self-evident requirement, but it does not appear in the Bill as it stands.
Amendment No. 108 is important. At present, the statement does not have to be presented to the parent or the individual undergoing the activity by the person who is supervising it; it can be presented on their behalf. So someone could spend a lot of time and effort drafting the statement, but hand it on to somebody else to hand on to somebody else, in a form of Chinese whispers. By the time it reached the intended recipient, the person presenting the statement might know nothing about it. It is important that the statement should be presented by the person who prepared it and who is supervising the activity. Then if there are any questions about what the statement means or intends, the person can answer those questions and the activity can proceed safely in the circumstances. Not to do that would be regrettable.
1714 Amendments Nos. 109, 70, 162, 71 and 110 deal with the age issue, and I shall not rehearse those arguments again. I draw hon. Members' attention to amendment No. 111, and my argument is that the statement should be strictly construed. If one takes away people's rights, one has to ensure that safeguards are in place, and that is what amendment No. 111 would achieve. I mentioned earlier the argument about activities that happen occasionally but are repeated. There is a counter-argument that a statement would not be needed every time, but if activities are repeated, it would pay for them to be revisited. Amendment No. 113 would provide that for continuous or repeated activities the statement would be checked at least once a year.
Amendments Nos. 75 and 76 deal with the exclusion of civil liability. From new clause 79, it appears that the hon. Member for Canterbury has accepted at least amendment No. 76, because breaches of statutory duty would not be excluded as a cause of action. There is no reference to breach of statutory duty in new clause 29. The hon. Gentleman can tell us later, if there is time, whether that was a drafting error by his pet High Court judge. I hope that it is because the hon. Gentleman agrees with me for once.
Amendments Nos. 79, 78 and 77 deal with one of the meaty issues in the Bill: promoting volunteers. I am holding out an olive branch to the hon. Member for Canterbury, because the amendments would enable the volunteer to avoid personal liability, while maintaining liability on the part of the organisation. The amendments would deal with the problem that an individual might fear they could be sued as first defendant in an action for negligence; the way that I have phrased the provisions ensures that the individual could not be sued, but that the organisation would still be held liable. That is the best of all possible worlds. The victim could still recover compensation without loss of their rights, save against the volunteer—which is of course a legal fiction at present—because the action would be transferred to the organisation concerned through the legal principle of vicarious liability.
I want to turn to some of the other amendments. Amendment No. 84 deals with an irrelevancy in the Bill, as the courts already take such action.
I realise that I have been going on for some time, but although I need another hour properly to do justice to the Bill, I am being prevailed on to allow other hon. Members to speak, so in deference to my hon. Friend the Member for Falkirk, West, who has been patiently waiting to speak, and to other hon. Members, I shall draw my remarks to a close. [HON. MEMBERS: "More, more."] That is not to concede that I have no arguments on my other amendments—I do.
I have tried to explain to the House why the Bill is bad and why it takes away people's rights; it is an unlimited charter to injure, kill and maim young children and it should be defeated.
§ Mr. Joyce
I want to direct my brief comments to new clause 29. I came to the debate instinctively supportive of the new clause, and even after listening to the magnificent lawyerly exposition of my hon. Friend the Member for Hendon (Mr. Dismore), who made some interesting and, perhaps, valid points, I am not sure that he has changed my mind. He has certainly not changed my view of the dangers of a compensation culture.
1715 Before the debate, I took the precaution of asking a few people about that issue. I spoke to members of the Camelon Labour club in my constituency, which organises activities and outings for children in the local area during the summer months. They tell me that there is no question but that people are more reluctant to volunteer nowadays, due to the perception that there is a greater risk of the law prevailing on them.
I spoke to a couple of people who run judo clubs. I know the sport fairly well; it has a lower risk of injury than many others. Those people had exactly the same opinion about the compensation culture. I spoke to people who run outdoor activities for schools; they held the same view. It seems pretty widespread. I also spoke to people at a marvellous organisation in my constituency—Westfield community centre, which, rather like the Camelon Labour club, runs summer activities for children. Mrs. Betty Cook, who runs that organisation extremely effectively, held the same opinion, so although I recognise the expertise of my hon. Friend the Member for Hendon, I find it a little odd that he describes the compensation culture as an urban myth, because that claim is neither scientific nor proven. I think that Members on both sides of the House would agree that there is some foundation for the idea that there is a compensation culture.
A number of hon. Members received quite a lot of correspondence before the debate. I looked through some of the arguments—clearly, they were offered independently and individually—and they had a certain interesting pattern. Different arguments were offered for disagreeing with the Bill, particularly the new clause, which represents its essence, and I shall share with the House a couple of those arguments, which were, frankly, rather shallow.
One of those arguments came from the Association of British Insurers, which said that the courts would interpret the Bill's provisions in such a way that people could not delineate voluntary activity from professional activity. We have heard a great deal lawyerly language today, but common sense can apply in these circumstances. Not every word that goes through someone's mind when reading a Bill needs to appear in the Bill. It is entirely possible to make that delineation.
Volunteering England does not support the Bill, but strangely—although this is not entirely contradictory—it agrees that there is an increasingly litigious culture. That is important. I do not think that the new clause was particularly badly drafted. I am not a lawyer, but it seems to have been drafted by someone who knew their business. However, I am not professionally qualified to make that point.
Another organisation, called Playlink, is sympathetic to the concerns that have been expressed, but it says that it does not support the Bill because the issues involved are very complex. There is a grave danger if we just give up. All issues can be complex, particularly where lawyers are concerned. I have enormous respect for lawyers, especially when I occasionally avail myself of one, although they are clearly very expensive. Nevertheless, we should be careful about accepting the argument that we should shy away because things are terribly complex. That is not a particularly good argument for not supporting the Bill.
1716 Another excellent organisation, Youth Action Network, was against the new clause and the Bill in general because it thought that the provisions would not be clear to the voluntary organisations that used them. Again, that relates to the argument about complexity. It is like saying, "Well, it's all a bit too complicated. Not everyone is a lawyer" My view is that common sense can solve much of that problem.
The British Trust for Conservation Volunteers thought that, instead of the Bill, more insurance should be taken out, and the Association of British Insurers might agree. Frankly, I have my doubts about that suggestion and I wonder whether other agendas might lie behind it.
My hon. Friend the Member for Inverness, East, Nairn and Lochaber (Mr. Stewart) referred to the Samaritans. Although the Samaritans do not engage in what we would normally consider as dangerous or risky activities, I suppose that risk might be involved in the advice that someone is given down the phone. I have not seen the correspondence, but the Samaritans did not like the Bill either. They thought that the Bill would make it more difficult to recruit and retain volunteers. I could not follow the logic of that argument. The Bill is about exposing risk, making it public and reducing the risk to volunteers, thus making it easier to recruit and retain people.
Another organisation broached an important issue, perhaps unintentionally. Student Volunteering England argued that
volunteering is becoming increasingly professionalised",so we should not separate professional staff from volunteers. My right hon. Friend the Member for Holborn and St. Pancras (Mr. Dobson) made it clear that a distinction must be made between a volunteer and a professional member of staff. We all understand that that distinction is important, irrespective of whether it is based on training, competence or whatever. If we say that volunteers must have professional expertise, it would be a sure fire way to get rid of any possibility of people volunteering. Of course, volunteers are not paid, but if they achieve the same standards of training and competence as professionals, they would reasonably expect to be paid.
Finally, although I could mention many more organisations, Volunteers in Action argued—this is my understanding of its argument—that we should not make the risks more transparent as a greater awareness of the risks would make it less likely that people would want to volunteer. Again that seems to be a back-to-front way of approaching the matter. We want to expose the risk so that people understand it and can ask themselves whether they want to help in the activities. We then want the courts, if necessary, to use their common sense to recognise that there was an element of risk.
§ Mr. Brazier
The hon. Gentleman is making an extremely punchy speech that goes to the heart of the issue of informed consent and to the intentions of everyone supporting the Bill. He is absolutely right.
§ Mr. Joyce
I agree with the hon. Gentleman's argument. Although I am prepared to accept expert legal advice and recognise that it is difficult to draft 1717 legislation—whether one does or does not support a Bill may depend on specific legal advice—the issue comes down to a straightforward common-sense distinction. My hon. Friend the Member for Hendon expounded at length on lawyerly principles, but he over-complicated the matter. One can hardly understand a single word if every word is taken apart. One cannot legislate in the House if every word is deconstructed in that fashion.
The issue comes down to a common-sense judgment. By and large, the new clause makes sense to me as a non-lawyer. I understand that there may be legal difficulties, but my feeling is that most right-thinking people would look at the new clause and say, "Yes, this makes sense. It will help to encourage more volunteers."
§ Lawrie Quinn
When my hon. Friend spoke to volunteer organisations in his constituency, did they, like the ones in my constituency, express the view that they faced large administrative burdens and red tape in undertaking their fund raising and of her activities? Does he think that the Bill will add to those burdens rather than reduce them?
§ Mr. Joyce
No, I do not. It is fairly straightforward. A certificate would be signed off and the questions of who would sign it and the ages at which children would have to be signed off could be understood quite clearly. The Department could stipulate such matters. It is relatively straightforward to ask for a certificate to be signed off, and that could encourage more people to join and help organisations.
Essentially, this is an issue of common sense. We should be careful about over-complicating matters, using too much legal jargon and deconstructing concepts too much. We all understand what is going on. We expect people to take reasonable care and exercise skill, and I understand exactly what that means. Above all, we should expose risk to enable people to judge whether they wish to take part in an activity that involves risk. Providing that those involved in voluntary activities understand the risks, things should go well. We should always bear in mind the increasing difficulties that organisations, such as those in my constituency, have in recruiting and retaining volunteers. That is the essence of the Bill.
§ The Parliamentary Under-Secretary of State for the Home Department (Fiona Mactaggart)
I enjoyed the contribution of my hon. Friend the Member for Falkirk. West (Mr. Joyce). Those of us who have been on the journey of this Bill know that this is an example of the road to hell being paved with very good intentions. Although the hon. Member for Canterbury (Mr. Brazier) has not been as generous to me as he has been on other occasions, he will know that I have worked hard and energetically to try to meet the Bill's intentions and the concerns of those who support it. I have tried to ensure that people are not deterred by the perceived threat of litigation from the fantastic experience of volunteering and providing youngsters, in particular, and others with the wonderful opportunities offered by participation in adventurous activities.
I still have the notebook in which I wrote at an early meeting with the hon. Gentleman the reasons that he gave for introducing the Bill. I tried to see whether it was possible to do what my hon. Friend the Member for 1718 Falkirk, West said was easy. It turns out to be rather harder than one thinks. At the meeting, we agreed on the concerns that the hon. Gentleman's Bill sought to address. I noted that it sought to change the behaviour of providers and participants, reduce the threat of litigation, have an impact on the cost of insurance and provide more adventurous activities for young people. It was at that point that I coined my concurrence with the latter point and said that I did not want a vanilla world. I sometimes feel a bit cross with him when he uses my criticism of a vanilla world as if it were invented by him and as if all those who have criticisms of the way in which his Bill is constructed want vanilla experiences for our young people.
§ Mr. Brazier
I am very happy to pay tribute once again to the hon. Lady for the considerable time and effort that she has put into negotiations about the Bill. She must realise that the reason why we find ourselves in profoundly different positions is the use of the word "perceived". We have given many examples to show that there is an actual threat from a series of unsatisfactory judgments, rather than merely a perceived threat of litigation.
§ Fiona Mactaggart
I shall deal specifically with volunteering, but I want first to respond to that point. Regrettably, I fear that the perception with regard to litigation has been substantially increased by the behaviour of the hon. Gentleman. For example, I refer to the article in The Times of 13 July entitled "Let's vote for the sixth form to go skiing and the Guides to fry sausages again." He has been guilty of alleging on many occasions that guides cannot cook without fear of litigation. I have searched the statute books for litigation about guides and cooking, and I have found it. The case of Leonard v. the Girl Guides Association of 1995 is the only guides and cooking case that has ever got to court as opposed to being settled out of court.
§ Fiona Mactaggart
Let me finish this point, and then the hon. Gentleman can make his point.
The judge in that case found that the guide involved had received instruction. That is what we would expect from the Guide Association, which is a very well-run institution. As to supervision, the court considered age, previous experience and extent of training instruction. The judge commented that the guide camp should be an enjoyable experience for all, but was also to teach and inform the young and encourage a level of responsibility in the young. The court accepted that there had been good supervision and that stifling supervision would have discouraged initiative, as a result of which the guide's case failed. That is the only case on the issue that has got to court.
One of the difficulties is that the hon. Gentleman frequently prays in aid cases that do not get to court. When one looks at the court judgments that have been made, one sees that they are different from the picture that he portrays. It is right that, on some occasions, insurers encourage organisations to settle out of court, 1719 sometimes even when they might have obtained satisfaction. On other occasions, organisations that understandably do not want to have run-ins with participants choose not to litigate cases. I completely understand that.
A note has just been passed to me saying that the specific case that I mentioned is the only case that has been reported but that it might not be the only one that has been litigated. I do not want to mislead the House, but I have searched the reports and I am confident that any substantial cases would be likely to have been reported.
It is true that some organisations choose not to litigate and that they often do so for good reasons, and not merely because of a feeling that the matter will be easier or cheaper to settle. One of the things that we need to do is deal with the consequences of a perception that people can go straight to court. First, we should ensure that people are aware of what the court says and their likelihood of failure. In a number of recent cases, very senior judges have clearly said that people must take responsibility for their actions. Lord Steyn says the courts must not contribute to the creation of a society bent on litigation.
We must deal with the view taken by, among others, insurance companies as a consequence of the courts myth, which is often eagerly received by our newspapers. The insurance sector's understanding of how voluntary organisations work is inadequate. The insurance sector thinks that "voluntary" means amateur and badly prepared, but that view is wrong in the overwhelming number of cases.
§ Mr. Brazier
The Minister is being generous in giving way. I wish that she had attended Tuesday's breakfast meeting organised by Kennedys, the legal advisers to the Scout Association, which is one of the largest voluntary organisations. The meeting was attended by legal and insurance experts from across the industry, who said that the choice is between putting a volunteer in court—they cited a string of cases, some of which I shared with the House, that they have lost—or paying up out of court, which happened in the case of the guides cooking sausages.
§ Fiona Mactaggart
The evidence and statements by the Association of British Insurers suggest that the difficulty is not the number of claims or the number of judgments, but the public's impression. Award inflation, which currently runs at 15 per cent. a year, is also a problem, as are lawyers' costs and arrangements. Insurance companies must also carry the cost of longterm occupational disease cases and so on.
There are ways in which we can deal with the insurance problem, which is something that the Home Office seeks to do. Some voluntary organisations initially felt that the Bill might be the answer, but they have concluded for all sorts of reasons, some of which were referred to by hon. Members, that it will not fix the problem. A better route would be intelligently to work with insurance companies to improve insurance 1720 companies' understanding of the voluntary sector, which is what organisations such as the Central Council of Physical Recreation have done.
§ Mr. Bacon
On a point of order, Britain's farmers have been waiting for the Food Labelling Bill for three years. Although the extremely long speech by the hon. Member for Hendon (Mr. Dismore) was within the rules, it possibly falls within the terms of
Obstruction of the business of the House otherwise than by disorderly conduct or persistence in irrelevance or tedious repetition.Will you, Mr. Deputy Speaker, consider reporting this morning's events to the Procedure Committee?
§ Mr. Deputy Speaker (Sir Alan Haselhurst)
Order. The hon. Gentleman makes a serious accusation against the Chair if he suggests that there has been, unnoticed, deliberate obstruction or any other irregularity. That is what he implied. Nothing out of order has taken place this morning. It is just one of those unfortunate things that if business does not proceed fast enough on an earlier measure on the Order Paper, other business is not reached. That is a simple fact of parliamentary life.
§ Fiona Mactaggart
Hon. Members have rightly praised the contributions made by volunteers and voluntary organisations in their constituencies. I want to correct a misapprehension that the House might be under about the number of people who volunteer.
§ Mr. Oliver Heald (North-East Hertfordshire) (Con)
On a point of order, Mr. Deputy Speaker. I seek your guidance. The speech by the hon. Member for Hendon (Mr. Dismore) was clearly in order, and I think that speaking for three hours is a record for this Parliament. Even so, that speech stopped important private Members' business, such as the Food Labelling Bill. Can you give any guidance on whether hon. Members should show the slightest courtesy to other hon. Members or the slightest consideration of the importance of other Bills in their speeches?
§ Mr. Deputy Speaker
Order. I have to say to the hon. Gentleman that there are devices open to hon. Members to speed up business on a particular measure; no such question was put to the Chair.
§ Mr. Deputy Speaker
Order. The record will make clear what appeared to be in the hon. Gentleman's point of order and the reply that I gave at the time.
It being half-past Two o'clock, MR. DEPUTY SPEAKER adjourned the debate without Question put, pursuant to Standing Order.
Debate to be resumed on Friday 15 October.