Mr Julian Brazier (Shadow Minister, International Affairs; Canterbury, Conservative)

Removing the subsection would leave us with a piece of paper much like many of the pieces of paper already produced by, for example, scout troops that take children to camp; there would be no guidance to the courts on how to treat it. In my view and that of the legal adviser who helped me to draft the Bill, that would completely emasculate it.

The Minister has again made much of the Hoffman case. The right hon. Member for Holborn and St. Pancras (Mr. Dobson) explained clearly that even the sort of advice that is available through his Inns of Court, the Corporation of London and so on proved that it was of little value to his local swimming club. I cannot emphasise enough just how narrowly drawn the judgment is. I read it again during the lunch break—there is a thorough brief on it in the Library and it was widely reported in the newspapers. It concerns a guy who swam illegally at a site, having climbed over a fence put in place to stop people

swimming illegally there and plastered with signs saying ''Danger: No Swimming''. Yet he was able to bring a successful negligence suit at every lower court. The case had to go all the way to the top to be overturned. The idea that that case will somehow provide comfort for people organising swimming, yachting, canoeing or any of the other sports that we have considered is too optimistic.

Turning to my amendments, let me explain why, after taking legal advice, I suggest moving from the ''manifestly unreasonable'' standard to the ''reckless disregard'' standard. When we drafted the Bill, despite having the help of two experienced lawyers— Michael Harbottle, who had worked on a previous charities Bill, and Roy Amlot QC—no obvious form of words suggested itself. We needed a new standard, and we used the words ''manifestly unreasonable'' as a way of trying to achieve that.

I am now extremely indebted to a legal academic, Peter Charlish, a specialist in the area, for suggesting that instead of ''manifestly unreasonable'' we use the expression ''reckless disregard''. He cites a 1962 Court of Appeal ruling, Woodridge v. Sumner and another. I shall not quote the many pages of the ruling; basically, it stated that a photographer who was kicked at a horse race was unable successfully to sustain a negligence suit that had come all the way to the Court of Appeal because, in the circumstances, it was reasonable that the Court should expect a higher standard of negligence than would apply in an ordinary commercial arrangement. It was a sporting event, there were horses around and it would have been necessary to prove reckless disregard.

By a happy accident, over the past generation or so our common law jurisdiction-sharing cousins in America, whom we think of as the most litigious people on earth, have, in many of their states, adopted the reckless disregard standard for sport and adventure training. Their cases cannot be used as precedent in British courts but they can be used for persuasive purposes—people can consult them. There is a lot of case law, as well as the one pivotal case that I mentioned, about the idea that ''reckless disregard'' amounts to something more than ordinary contributory negligence.

My amendment No. 8 addresses a concern that has been mentioned by Committee members—the hon. Member for Loughborough (Mr. Reed) is nodding; he was one of them—and by outside organisations. That is that people might fear that if they did not produce a certificate of inherent risk when they were bee-keeping or making cakes they might find themselves disadvantaged in a court case. I am told that in theory the wording is redundant, but it is no bad thing to include it in order to make it clear that no court can take—

See this speech in context