Clause 5 - Persons assisting those injured or suffering

Promotion of Volunteering Bill – in a Public Bill Committee at 4:25 pm on 5th May 2004.

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Photo of Sir David Amess Sir David Amess Conservative, Southend West

With this it will be convenient to discuss the following amendments:

No. 19, in clause 5, page 4, line 8, after 'person' insert

'to whom this section applies'.

No. 20, in clause 5, page 4, line 14, after 'liable' insert

'in any civil proceedings'.

No. 21, in clause 5, page 4, line 14, after 'law' insert 'or otherwise'.

No. 22, in clause 5, page 4, line 14, leave out

'unless he intended to cause harm'

and insert—

'(2) Subsection (1) does not apply if the person providing assistance—

(a) intended to cause harm to the other person, or

(b) was reckless as to whether his action might cause him harm.

(3) For the purposes of subsection (2)(b) a person is reckless as to the consequences of his action if, and only if, he foresees the risk of the consequences and unreasonably proceeds with the action.'.

No. 23, in clause 5, page 4, line 15, at end insert—

'( ) Subsection (1) does not apply to a person acting in his capacity as a person provided by an employer to render first-aid to employees.'.

No. 24, in clause 5, page 4, line 15, at end insert—

'( ) Nothing in this section shall affect the operation of the Health and Safety at Work etc Act 1974 or any regulations under that Act.'.

No. 25, in clause 5, page 4, line 15, at end insert—

'( ) The Secretary of State may make provision by regulations as to the descriptions of person to whom this section applies.

( ) Any such regulations—

(a) may make different provision for different cases and circumstances, and

(b) shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

( ) Before making any regulations under this section the Secretary of State shall consult such representative and other organisations as appears to him appropriate.'.

Photo of Julian Brazier Julian Brazier Shadow Minister (Foreign and Commonwealth Affairs)

I shall be even briefer on this clause than on previous clauses, because I know that the Committee wants to get on to debate clause 1.

In America, with which I shall draw parallels when we debate clause 2 next Wednesday, the good Samaritan provisions relating to people who assist at, for example, road traffic accidents and who have, from time to time, been sued, have been pursued on much the same agenda as that for people who have tried to sort out the problem of the litigation culture in sport. It seemed logical to introduce this clause in a Bill, even if it primarily dealt with another issue. I was particularly encouraged to do so by many people in the voluntary sector and received a charming letter from, among others, St. John Ambulance, supporting me. None the less, the practical fact is that, while this side of the Atlantic has a whole mass of case law, which we shall come to next Wednesday, relating to the main substance of the Bill, it has not yet had any bad cases drawn to my attention that clause 5 would cover. So, without too much delay, I urge the Committee to disagree to it.

Photo of Lembit Öpik Lembit Öpik Shadow Secretary of State for Northern Ireland, Northern Ireland Affairs, Shadow Secretary of State for Wales, Welsh Affairs 4:30 pm, 5th May 2004

The hon. Gentleman seems to be taking the principle of considering the evidence and risk-management principle that we discussed earlier. I hope that the Minister will accept that principle in agreeing to the removal of the clause, which I assume she will agree to. If she does, I want to check that she has taken that on board for other aspects of the Bill as well.

Photo of Fiona Mactaggart Fiona Mactaggart Parliamentary Under-Secretary (Home Office)

I have always taken the approach when dealing with issues such as those in the Bill that we need evidence not only of the need to deal with the matters, but that the proposed solutions will work. I shall take that approach with every clause, which is why I am grateful that the hon. Member for Canterbury recognises that we should not let the existence of good Samaritan-type legislation in a

litigious culture such as that of the USA lead us to introduce a far-reaching and, in some ways, flawed provision without clear and convincing evidence that there is a problem and that the legislation is the best way to tackle it.

I share the hon. Gentleman's belief that those conditions have not been met in this case. To introduce such a measure would be excessive. It could have extremely damaging effects on the treatment of injured people by good Samaritans if it protects the latter from any responsibility for their actions. We will come later in the debate to responsibility, which is at the heart of the Bill.

In the discussions that we have to try to find consensus, I have been grateful to the hon. Gentleman for recognising the issue of responsibility. The Government's ambition is to ensure that the legislation recognises that people must act responsibly. If we were to accept this widely drawn clause, which would apply whenever one person endeavours to provide assistance to another, we could fail to distinguish between people who assist responsibly and those who act irresponsibly. We do not wish to discourage people from giving assistance to those whom they believe are injured or in distress, but it is important that they act sensibly and are not irresponsible, however well meaning they are. Someone can be irresponsible and well intentioned at the same time. That is at the heart of the Bill. We are trying to ensure that well-intentioned people are not given license to be irresponsible. If the clause were to survive, there would be a risk that such people would be permitted to commit ill-advised actions that could make matters worse.

Photo of Lembit Öpik Lembit Öpik Shadow Secretary of State for Northern Ireland, Northern Ireland Affairs, Shadow Secretary of State for Wales, Welsh Affairs

I am willing to go along with disagreeing to the clause, but I have a slight issue to raise with the Minister. She is pushing this matter too far. Presenting the measure as a Trojan horse for irresponsible behaviour shows a rather negative view of the human condition. I wish to concentrate on this statement in the clause:

''any action performed by him in good faith''.

That really should be insurance enough. In the event of a court case, those who acted in bad faith would suffer the appropriate sanctions.

Photo of Fiona Mactaggart Fiona Mactaggart Parliamentary Under-Secretary (Home Office)

I do not agree. The issue is not just about a person's good faith, as it is right that we prevent people from acting recklessly in good faith. There is a risk—we should deal with it on this clause, although we will return to it later—that we will be tempted into passing legislation that, first, does not recognise the present protection and, secondly, provides a wide permission to act recklessly, even if in good faith. I must put this on the record before I draw my remarks to a close; I am not trying to spin out the debate. At present, common law gives the court the responsibility to reach a fair and just decision having considered all the relevant circumstances of the case. The clause would not enable the court to take into account the circumstances of the case. It would mean that, as long as someone's intentions were good,

however reckless they were, their behaviour would be permissible. That looks quite good on the surface, but it is fundamentally dangerous.

Photo of Frank Dobson Frank Dobson Labour, Holborn and St Pancras

Until very recently, everyone assumed that common law said that if someone acted in good faith and reasonably, they would be safe. It is only in very recent times that a number of court cases have suggested that that is no longer the case. The worry is that if someone has had a road accident or a sports-related accident and they are lying on the ground injured, people will do nothing for fear of being prosecuted. The situation is hazy and uncertain. Once we are relying on common law, we are back to a few precedents—the recent precedents are bad—and the opinion of a judge.

Photo of Fiona Mactaggart Fiona Mactaggart Parliamentary Under-Secretary (Home Office)

We are getting into matters that we will consider when we deal with clause 2. Good faith is not the sole criterion, as it would be under the clause before us. As legislators, we have a responsibility not to increase a misperception about the way things are. The hon. Member for Canterbury quite rightly said that the evidence that he had trawled through suggested that the fear that led him to include the clause was unfounded in practice and that the clause was therefore unnecessary. It is down to us not to encourage people to believe that they are at risk of being sued if they are normally sensible and act in good faith, because as the hon. Gentleman pointed out, that is not what is happening. We have a responsibility for people's perceptions. We should not feed the misconception about this issue, and we should be assiduous in ensuring that people know that the risk is not as great as many of them fear.

Photo of Frank Dobson Frank Dobson Labour, Holborn and St Pancras

Nevertheless, the perception exists and those involved in sporting spheres recognise that there is a danger that people who have had an accident will just be left alone. If we do not legislate, it will look as though nothing is happening and nothing has changed, and the idea that someone might end up in court for trying to help will not be dashed by anything that is said in this Committee. What are the Government going to do to change the public perception?

The situation has changed. The advice that the Minister has received seems to be based on the assumption that things are as they have always been, but they are not—they have shifted in one direction. The intention of every proposal in this short Bill has been to reverse that extension. The perception to which I have referred remains, and if we do not do anything about the law or the perception of it, people will not get the helpful treatment that they would have otherwise have received.

Photo of Fiona Mactaggart Fiona Mactaggart Parliamentary Under-Secretary (Home Office)

That is exactly why I have worked as hard as I have to find a way of dealing with that point and why I have offered to set up, within the framework of the Russell commission on the future of volunteering, a study about the barriers to volunteering that we are discussing, such as risk. It is also why I have had a number of meetings with the Department for Constitutional Affairs about how litigation is dealt with. I recognise that the perception exists, but we have a duty to think carefully about the problem. If it is a problem of perception rather than

reality, what is the best mechanism to deal with that perception? If there is a real problem, we will require effective legislation to deal with it, but we can manage a perceived concern without legislation; indeed, legislation would be a bad solution in such circumstances because it would be unnecessary, and legislation that is not needed should not be introduced.

Photo of Julian Brazier Julian Brazier Shadow Minister (Foreign and Commonwealth Affairs)

I have a lot of sympathy with the point made by the right hon. Member for Holborn and St. Pancras (Mr. Dobson). However, the key distinction between this clause and clause 2 is that, whereas the latter trawled up a huge number of unsatisfactory court cases and out-of-court settlements, which we shall come to later, none of the people to whom I have spoken about issues arising from this clause has given an example of the law going wrong. The clause was drafted with the assistance of Roy Amlot QC, who made it clear that he drafted it as he did because, given the experience in America, he was concerned about the way in which future judgments might turn rather than because of any actual judgment.

Question put and negatived.

Clause 5 disagreed to.