Clause 2 - Statements of Inherent Risk

Promotion of Volunteering Bill – in a Public Bill Committee at 9:30 am on 19th May 2004.

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Amendment proposed [12 May]: No. 38, in page 2, line 24, to leave out the words 'activity or activities' and insert the words 'sport or adventure training'.—[Fiona Mactaggart.]

Question again proposed, That the amendment be made.

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

I remind the Committee that with this we are discussing the following amendments: No. 39, in clause 2, page 2, line 24, leave out 'activity or activities' and insert 'prescribed activities'.

No. 55, in clause 2, page 3, line 12, at end insert—

'( ) In subsection (1) ''prescribed activities'' means such activities as may be prescribed by regulations made by the Secretary of State.

( ) Any such regulations 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.'.

I also remind the Committee that there is a money resolution, copies of which are available in the Room.

Photo of Judy Mallaber Judy Mallaber Labour, Amber Valley

At the end of our previous sitting, I was exploring the scope of the Bill after listening to the arguments about the amendments. On specific aspects of the Bill, I was concerned—as are other members of the Committee—that nothing in it should lead to adverse consequences in respect of what we all wish to achieve and to make sure that it will have the desired effect and not lead to bureaucracy and costs for voluntary organisations and volunteers.

I am worried about the scope of the part of the Bill that is the subject of the amendments. I appreciate that producing a statement of inherent risk is voluntary and that the hon. Member for Canterbury (Mr. Brazier) took care when drafting the Bill and subsequent amendments to ensure that such a statement would be voluntary. Many organisations will consider a risk so negligible in their circumstances that they do not feel the need for a statement and do not want the burden of having to produce one. However, given my experience of insurance companies, there is a serious danger that they will put pressure on any organisation that is eligible to provide a statement to do so, as a belt-and-braces job.

I realise that the Bill has come about because of court cases, out-of-court settlements, bizarre and unacceptable situations, and the view that such matters have stoked up insurance costs. However, in my experience, insurance companies can make bizarre decisions that are not necessarily based on an analysis of whether a particular organisation or individual really falls within the category of risk on which they base their premium. It is therefore likely that they would wrongly categorise a broad range of voluntary organisations as needing a statement of inherent risk. In that categorisation, insurance companies could catch organisations that do not wish to be caught and those that we are not seeking to push into making such a statement.

I thought of such matters at our previous sitting when I remembered firms in my constituency that had difficulty in obtaining employers' insurance and public liability insurance in the post-9/11 insurance world. One company, which made hand-produced guitar strings in a small workplace next to the owner's home in a Derbyshire village, was denied insurance simply because it was selling goods to, among other countries, the United States of America, even though it was hardly a firm that would be threatened by international terrorism, which presumably was what that category of risk was meant to catch.

A second example was a firm classified as being in the construction industry, which we know is unsafe and which might have high insurance premiums, but which did not do its work on a building site, but produced materials used on building sites.

I am worried that insurance companies might with similar inaccuracy lump small voluntary organisations into a category alongside sporting and adventure groups in which they need to provide a statement. My concern is based partly on my experience of how insurance companies have wrongly categorised firms and individuals in areas that do not relate to the level of risk for the premium that they are asked to pay. Insurance companies are often too lazy to undertake a more sophisticated analysis of actual risks relating to a particular organisation. I am not convinced that they will be mollified by the commendable protections put forward by the hon. Member for Canterbury to strengthen the voluntary nature of the Bill. We need to limit the scope, and I would err on the side of caution because I am not confident that insurance companies will accurately consider the risks of particular organisations.

My right hon. Friend the Member for Holborn and St. Pancras (Mr. Dobson) made a convincing case about why amendment No. 38 is too narrow; he said that it does not mention play activities. I feel that I have to support amendments Nos. 39 and 55, although I understand that hon. Members may be reluctant to leave the measures to subsequent scrutiny. However, it may be possible to refine the provisions later in the course of the Bill.

I am genuinely concerned about how insurance companies will operate in cases in which a category that does not want a statement of risk is entitled to one under the Bill. Judging from previous experience, and

from the crude way in which insurance firms often categorise companies and people, I worry that they will insist on sweeping them into the Bill and making them do what they do not want to. We always speculate on exactly what a Bill's impact will be, but although we cannot be sure of the impact of this one, I would hate to add new problems to those of voluntary organisations and volunteers who might otherwise not be affected. I think that there are arguments for attempting to limit its scope.

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

Welcome back to the Chair, Mr. Amess.

I set out all the relevant arguments earlier, but I should just add that more and more voluntary organisations now feel bound to get insurance. Given that a lady who injured herself on a dance floor that was treated with non-stick material is currently suing the organisation involved, the certificates might in a sense offer a way of getting insurance premiums down for voluntary groups. I can only reiterate that the statements are not compulsory and that, crucially, we should make it clear that they need be signed only once and need not be exhaustive, and so on. We have really bent over backwards on this matter, so I am afraid that I am unable to urge the Committee to support the amendments; I ask it to oppose all three.

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

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: No. 39, in clause 2, page 2, line 24, leave out 'activity or activities' and insert 'prescribed activities'.—[Fiona Mactaggart.]

Question put, That the amendment be made:—

The Committee divided: Ayes 4, Noes 11.

Division number 4 Adults Abused in Childhood — Clause 2 - Statements of Inherent Risk

Aye: 4 MPs

No: 11 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

Amendment made: No. 40, in clause 2, page 2, line 25, after 'volunteer,' insert

'the employee (or the voluntary organisation or voluntary body by whom he is employed),'.—[Fiona Mactaggart.]

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

I beg to move amendment No. 41, in clause 2, page 2, line 26, leave out 'written'.

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

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

No. 42, in clause 2, page 2, line 30, leave out subsection (2).

No. 43, in clause 2, page 2, line 32, leave out 'that'.

No. 64, in clause 2, page 2, line 33, at end insert—

'(2) The statement of Inherent Risk shall indicate—

(a) the relevant qualifications held and training completed by the persons who will be involved in providing the activities;

(b) that the person undertaking the activity shall obey the instructions given by the person who will be involved in providing the activities;

(c) that, if the person undertaking the activity is aged less than sixteen, the person's parent or guardian must—

(i) explain the risks set out in the Statement to the person, and

(ii) inform that person of the need to obey the person who will be involved in providing the activities; and

(d) that, if the person undertaking the activity is aged sixteen or over, he shares responsibility for the safe conduct of the activity.'.

No. 44, in clause 2, page 2, line 33, at end insert—

'(2) The Statement of Inherent Risk shall be in writing and shall—

(a) set out the measures which the person presenting the Statement, and (if that person is acting in his capacity as an employee) the voluntary organisation or volunteering body employing him, has taken and intends to take during the course of the activity to minimise the risks set out in the Statement;

(b) state the relevant qualifications held and training completed by the persons who will be involved in providing the activities;

(c) list the relevant legal obligations of the person presenting the Statement, and (if that person is acting in his capacity as an employee) the voluntary organisation or volunteering body employing him;

(d) include details of the methods of seeking compensation in the event of injury or harm as a result of the activity.'.

No. 46, in clause 2, page 2, line 35, leave out paragraph (a).

No. 47, in clause 2, page 2, line 35, leave out 'as' and insert 'that'.

No. 4, in clause 2, page 2, line 37, at end insert—

'(aa) indicate the types of risk likely to be encountered when undertaking the activity, but need not be exhaustive.'.

No. 66, in clause 2, page 2, line 46, at end insert—

'(3A) The Statement of Inherent Risk—

(a) may relate to the activity or activities which are regularly administered or managed by or under the control of the volunteer, employee, voluntary organisation or volunteering body or to an exceptional activity or activities including a school visit, and

(b) need only be presented once to the adult person concerned or the parent or guardian of the child concerned.'.

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

The amendments relate to subsections (2) and (3) of clause 2. Subsection (2) states that the statement of inherent risk must be in writing, and introduces the notion of shared responsibility. Subsection (3) gives further details about risks covered by the SIR and states that it has no impact on criminal liability and does not apply where there is an element of compulsion.

The hon. Member for Canterbury knows that we have reservations about the drafting of those subsections, and he has sought to compromise and to improve the Bill by addressing our concerns. I thank him for that, but, unfortunately, his proposed amendments do not go far enough.

Amendments Nos. 41 and 42 are paving amendments for amendment No. 44, which sets out what we would expect an SIR to contain. It covers the same ground as amendment No. 64, which was tabled by the hon. Gentleman himself. Amendments Nos. 43 and 47 would make minor drafting changes, and amendment No. 46 would delete subsection (3)(a), which we believe to be unnecessary.

The Bill is intended to tackle frivolous claims, rising insurance premiums and the fear of litigation. We believe that those aims should be met by the improvement of behaviour and the development of a safety culture that is based on sound risk assessment and management. The best way to prevent claims is to prevent accidents. I believe that we all share that ambition. The question is how we achieve it.

The Bill is one-sided. It shifts responsibility for the safe conduct of activities to the participant. I recognise that the participant has a role to play, but the Bill does not address the behaviour of providers and volunteers. Amendment No. 44 would mean that the SIR would have to state what measures the provider is taking or intends to take to minimise risk. That is a proper thing for participants to expect. They need to know that the person who is organising an activity has taken proper steps to minimise risks. They should also know about the provider's relevant training and qualifications, the provider's legal obligations to the participant and what the participant may do in the event of an accident.

That first point is crucial. I note that the hon. Member for Canterbury tabled an almost identical amendment that he later withdrew, which is a pity. The measure would focus the provider's mind on risk management and what he should do to ensure that the activity is as safe as possible. It would also reassure participants, go some way toward removing the barrier that we are anxious the statement would otherwise present, clear up ambiguity about who is responsible for what, and ensure that participants do not share responsibility for such things as the upkeep of safety equipment, which is clearly the responsibility of the provider.

The amendment emphasises the notion that with rights come responsibilities. When the hon. Gentleman and I discussed whether we could reach agreement on the Bill's construction, I pressed that concept, and he was willing to accept that there are rights and responsibilities on both sides. The rights of providers to be free from frivolous or vexatious claims should be balanced by their responsibility to do all they can to minimise risk. Participants' responsibility to behave responsibly should be balanced by their right to claim if they are injured as a result of someone's negligence.

The hon. Gentleman says that he withdrew the amendment regarding the minimisation of risk, because he had received legal advice that it might encourage litigation. We are confident that that advice was wrong. Our approach would help to reduce the number of accidents giving rise to a claim in the first place. If providers implement the measures, they will demonstrate to insurers and the courts that they did all

they could to minimise risk. The only reason why the measure might give rise to a claim would be if the provider had not put the appropriate measures in place. Of course, if participants are injured as a result of such a failure, they should be able to claim.

We agree about the relevant training and qualifications. The legal obligations on the provider are desirable because they will help to reassure participants and parents. They may prevent the situation in which many people choose not to take part in activities, or choose not to allow their children to take part in them, because they refuse to sign their rights away.

We know that the statement of inherent risk is not intended to be mandatory, but we also know, because we are realists, that people may feel obliged to sign if they are to participate, because, ''That is the way we do things in this club,'' or for whatever reason. The measure is also likely to give statements of inherent risk more teeth, as the courts will look on them more favourably if they are balanced than if they seem to exclude everything. Moreover, the idea of reasonable exclusions is well established.

I understand the hon. Gentleman's concern that there are already enough lawyers and advice centres out there drumming up business, and we do not need to add to them. I agree to an extent, but we are simply suggesting that there should be a statement of fact that informs people of their legal rights. That is not an encouragement to sue. It is important that people know that they have legal rights. Their legal rights would be diminished if the hon. Gentleman's later amendments were passed. People have legal rights, and it is important that they should know them.

Subsection (2)(d) in amendment No. 44 explains what people may do in the event of an accident. It is not supposed to encourage all participants to sue in the event of an accident, but it will be a statement of fact, and can set out the fact that the first port of call is the provider. The participant may not have been badly injured, but may have suffered damage to property, so compensation does not always mean a large payment; it may mean that the payment is fixed.

It is not unusual for documents that affect legal rights to explain what people are entitled to do in the event of a problem. As with subsection (2)(c) in amendment No. 44, the courts may consider the statement of inherent risk more favourably. Given the hon. Gentleman's concerns, however, I am prepared to table an amendment to remove subsection (2)(d) in the amendment on Report if it is passed. Our ambition is not to promote more litigation; indeed, we agree with the hon. Gentleman that there is merit in trying to reduce it.

The remaining subsections in amendment No. 64 aim to cover three issues: the need to obey the provider; the need for parents or guardians to explain the risks to the children; and the principle of shared responsibility. I shall refer to the second point first, as I agree with it in principle. It seems perfectly sensible that parents or guardians should explain risk to their children. I have no reservations about that; indeed, it

could be a useful addition to a statement of inherent risk. I do, however, have serious concerns about the other points.

It is not right that a participant should necessarily obey the provider's instructions in every case. The problem with law is how to construct it. First, providers will not take the right decision every time, and we must allow for that. Let us imagine an adventurous event in which the provider who is leading it suggests, for example, that a particular way of tying up a rope is the safest way. If an experienced participant disagrees, it might be sensible for them to be able to discuss the matter. I am concerned that children, having been told that they have to obey, may feel under pressure to do more than they feel able to do. That is the most serious risk. We need to leave a participant with a right to say, ''Actually, I can't do that.'' I know that the hon. Member for Canterbury intends to avoid unsafe and foolish practices: for example, disobeying the rules and basic safety regulations established by the provider. That is a sensible ambition. However, I am concerned that requiring participants to obey might, in practice, require them to obey an instruction that they do not feel capable of carrying out. We need to make sure that people can say, ''This is the limit of my ability; I cannot do that, and I am not going to.''

Photo of Julian Brazier Julian Brazier Shadow Minister (Foreign and Commonwealth Affairs) 9:45 am, 19th May 2004

I understand the Minister's point exactly, and it is a point that a court could perfectly well take into account. However, the problem is the way in which the courts are interpreting the law at the moment. No account seems to be taken of the normal requirement to obey.

The case that I mentioned earlier involved volunteers causing an accident as a result of directly disobeying orders given two minutes before. The school ski-ing trip case was eventually overturned in the Court of Appeal after five years and huge expense. That all turned on the assumption that the teachers should have assumed that the boy was going to go on refusing to do as he was told and behaving like an idiot.

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

As I read the ski-ing case in Llandudno, the company owed a duty of care to give an oral warning, but the failure to do so did not cause an accident and they did not get away with it.

I think that the issue is covered. The Court of Appeal and House of Lords judgments are quite clear on the principle of shared responsibility. The issue is covered under the present law. The hon. Gentleman cites lower court cases that have later been resolved in a senior court, where that principle of shared responsibility has been clearly stated. Such cases are one of the things that have ended us up with legislation that deals with something that is best dealt with in another way, and on which progress is currently being made in another way.

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

I am trying hard to make progress. The hon. Gentleman will be aware that at our last sitting I was constantly interrupted; as a result, Committee members felt frustrated. I am not trying to silence the hon. Gentleman, but to make progress. I know that there is eagerness to get through this Bill more speedily than we have heretofore.

Amendment No. 4 would reduce bureaucracy by ensuring that statements of inherent risk should contain the types of risk associated with an activity, rather than an exhaustive list. I am happy with that principle. However, participants must understand and accept the risks associated with the activities; the description should not be too general.

This is a question of the obligation that the provider owes the participant. The provider must not seek to use the statement to create a blanket exemption. Furthermore, I am concerned that the amendment might risk cases being brought to establish what is covered by this type of risk. We are all united in a desire to reduce litigation.

Amendment No. 66 covers two points, both of which are aimed at reducing bureaucracy. I am content with the principle, but, again, I have concerns about the detail. Hon. Members all want to fix a problem. We have a united view that there is a problem that needs to be fixed; I speak as the person who was keen to encourage the Government to allow the Bill to make progress this far. However, the more the issue is considered, the more it appears that the devil is in the detail, which we need to get right. My main concern about amendment No. 66 is that participants have to understand the risks associated with particular activities, and covering several activities and classes of risk on a statement might be confusing. For example, I would not refer to a school trip as exceptional. Such trips are covered by a wealth of guidance and instructions.

The statement of inherent risk should not be a static document, but one of the amendments might cause it to be. It needs to be updated to reflect new circumstances, safety measures or risks that become apparent. It is not right that people should sign one every time they turn up to Scouts or Guides, but it is right that we operate a practice that draws people's attention to the kinds of risk that can be involved in an activity, and properly informs them about those risks. The question is whether that is best done by a statement of inherent risk. The conclusion to which I came, having discussed this at length with the hon. Member for Canterbury, was that it is probably not. There is a problem, and it needs to be fixed partly by changing the perceptions of litigation, partly by a safety culture, and partly by better information and provision for both volunteers and participants.

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

I am going to keep on resisting the amendments of the hon. Member for Canterbury, if I may. My amendments are designed to ensure that proper risk assessment and management procedures are followed for every activity. It is only by building a

safety culture that we will prevent the accidents and consequences that this Bill is designed to address. If we want the courts to understand the statement of inherent risk and to avoid breaching human rights, we must ensure that they are balanced documents that cover both responsibilities and rights. My amendments are designed to strike that balance, but I do not believe that that is what the promoter's amendments do.

Photo of Tim Boswell Tim Boswell Shadow Minister, Home, Constitutional & Legal Affairs, Shadow Spokesperson (Business, Innovation and Skills), Shadow Minister (Constitutional Affairs)

I am pleased to welcome you to the Chair, Mr. Amess. I have followed the discussion with some interest, and I defer to the expertise of my hon. Friend the Member for Canterbury to respond to the amendments generally. I just want to make a point about the saving clause that no statement of inherent risk would preclude any claim for negligence or breach of statutory duty where it would be manifestly unreasonable not to do so. That does not prevent people from litigating, but suggests that if circumstances have materially changed, courts could take that into account.

The hon. Lady is perhaps right to raise two points, although they are not necessarily convincing. The first point relates to obedience of what might be termed a legitimate authority. Again, my hon. Friend the Member for Canterbury might be able to inform the Committee from his experience in military discipline. There is an important distinction between normally obeying an order, which is what one is meant to do, and obeying an order of a senior officer who has gone off his head or something similar. That is probably already reflected satisfactorily in both law and practice.

The second point relates to when the risk has changed. We all agree that we do not want people to fill in a form every time they undertake any activity. On the other hand, the risk might have moved away. Signing or presenting a certificate only once should not be treated as a carte blanche for anything that might happen in future. I may have overlooked something in the drafting of the Bill or the amendments, but it seems possible that the matter could further be dealt with. It could be said that if the inherent risk has, to use my shorthand, moved away or changed its character, and either the presenter of the certificate is aware that it is no longer appropriate or it can be shown that they should be aware, that certificate should be amended and, by implication, the previous one should be withdrawn.

I do not feel intensely about that, because my hon. Friend the Member for Canterbury is making a powerful point and we need to get the protective certificates into play. However, I concede to the Minister that they must be as appropriate as possible and that they are in no sense a blank cheque allowing anybody to do something foolish or something that does not recognise the changing facts of the situation.

Photo of Mr Andrew Bennett Mr Andrew Bennett Labour, Denton and Reddish 10:00 am, 19th May 2004

I can make my points about the amendments, rather than wait for the clause stand part debate.

I look with some concern at the amendments and almost at the whole concept of the statement of inherent risk. That idea would have totally wrecked my childhood. Fortunately, it cannot be given back.

Photo of Mr Andrew Bennett Mr Andrew Bennett Labour, Denton and Reddish

Yes. It is getting there rapidly.

When I first joined my scout group, if it had sent to my parents details of the inherent risk of going out on bikes, hitchhiking, canoeing, fell walking, camping, potholing or rock climbing, I am pretty certain that my mum would have said, ''No way'', or a phrase that was more appropriate in that distant age. It simply would not have been on. The alternative would have been for the scout group to send out a separate letter each time we started to approach doing one or two of those activities.

The trouble is that there was a great ambiguity about whether we did most of those things as scouts or merely as young people. There was a scout leader, who was much not older than some of the older people in the group when I first started, and he sometimes came with us. In such cases, one could say that the activities were scout activities and the statement would have been relevant. If he was not available to come, it did not stop us going; we simply went. All that would have happened in such situations is that we would have had to tell him not to come, because he would have had some responsibility. If he did not come, a much younger group of people would have had to take responsibility for themselves.

How did we go out canoeing for the first time? One member of the group had made up a kit of a canoe and we did not have much of a clue how to use it. We knew nothing about canoe safety and there were no lifejackets. People took the trouble to get hold of the right information and we very quickly learned. One could say that the scout group should have exercised more supervision over us. However, I am confident that if it had started to say, ''Oh no, you cannot do that without this, that and the other'', we would have simply stopped undertaking such activities as part of the scout group and done so as individuals.

On one occasion when we went out potholing, we left the scoutmaster behind, because he had considerable worries about one of the activities that we did. To get into the pothole, a stream had to be diverted. That involved the younger members throwing the water across a channel, which is perfectly easy to do, but it relied on them to keep doing it while the older people were down the pothole. I can understand why the scoutmaster did not want to take responsibility for that activity. No one ever came to any harm, but the inherent risk statement to cover that situation would have been a nightmare to write.

We need to think carefully about the statement. First, is it practical? Secondly, will it mean that an awful lot of people are refused permission by their parents to participate in activities because the statement puts them off? Does it mean that many people who might have been supervised by someone who had common sense and training in an activity will

simply do such things on their own? I plead with the hon. Member for Canterbury to think carefully about the statement and about whether it will encourage people to go out and enjoy adventure activities or make it much harder for them to do so.

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

We have had a good short debate, and I shall return to that final powerful point at the end of my remarks, because it is extremely germane.

I thought that every member of the Committee had received a letter from the Joint Committee on Human Rights, but I understand that only the Minister and I have done so. If any Committee member wants to see a copy, I will happily provide one later. The Joint Committee objected to some clauses, which were removed. Then, however, out of the blue, it raised various human rights objections. We asked a human rights QC to check the concept of the statement of inherent risk, and he passed it subject only to its not applying to compulsory activities. We have asked him to have a second look at the detail of the Bill. When I receive his comments, I shall share them with the Committee.

I am grateful for the measured way in which the Minister presented her points and I am happy to accept all but one of her amendments. The one that I cannot accept, amendment No. 44, is crucial, and I have tabled an alternative—amendment No. 64. She generously said that she would be happy to drop proposed subsection (2)(d), which is about including

''details of the methods of seeking compensation in the event of injury or harm as a result of the activity.''

However, the problem lies with proposed subsection (2)(a), which concerns setting out

''the measures which the person presenting the Statement, and (if that person is acting in his capacity as an employee) the voluntary organisation or volunteering body employing him, has taken and intends to take during the course of the activity to minimise the risks set out in the Statement;''.

In the interests of balance, I thought that we might be able to accept that provision, which is why I tabled something similar. However, my legal advice is absolutely overwhelming. It is the legal counterpart of the points that have been made so effectively by the hon. Member for Denton and Reddish (Andrew Bennett), and it comes not only from the lawyer who has assisted me throughout my introducing the Bill, who had a hand in drafting previous charities Bills, but from both the Scouts and the Girl Guides. Let me reassure the hon. Gentleman that that advice is to support the concept of the certificate of inherent risk. The concept was produced and put to me by the Campaign for Adventure, which brings together the Youth Hostels Association, the YMCA, the Duke of Edinburgh award scheme and a host of others.

We must not get into long, detailed lists of all the measures taken. It will simply give the lawyers a field day in subsequent litigation if they can base a case on proving that a scout leader had a heavy cold or agreed to take 10 people out on a hill when the guidelines said that he should eight people, but he did not want to leave two behind. While I am happy to accept the

Minister's point about including qualifications, which is reflected in my amendment No. 64, I am not happy with the idea that there should be a list of measures.

During our discussions on earlier clauses, the Minister made a number of what some of us felt were Second Reading points about the viability of the certificate. As we have reached the key part of clause 2, which most concerns the issue, let me make a couple of general points to remind us where we are. The hon. Member for Denton and Reddish got to the heart of the matter: the more we undermine structured activity, the more, in theory—I do not believe that it applies in practice, for a reason that I shall come to—we make that activity fractionally safer but reduce the number of people willing to organise it and, crucially, the more youngsters we drive out of it. Some of those youngsters end up becoming couch potatoes—this is the third worst country in the world for obesity—and the more adventurous ones, such as the hon. Gentleman, go out and find their own unstructured activities, which are much more dangerous.

We are talking not about removing the ability to sue, but about limiting it. I do not accept that limiting it will have a negative effect on safety, because safety derives from the quality and training of voluntary organisations, and from the pride that they had long before all this nonsensical litigation started in the last 11 or 12 years. We have some of the best safety records anywhere in the world, and there are few countries where parachuting and sailing—two pursuits that I know well—are as safe.

All those things are backed by one of the most comprehensive criminal law systems, which the Bill does not touch. In the furthest corner of the world, there is a country with an English-speaking jurisdiction that allows no litigation in sporting cases—New Zealand. It, too, has extremely good safety standards, but those who do have a serious accident can apply for compensation from the Government. New Zealand's criminal law system is similar to ours, but the safety system is driven by the high quality and high morale of sports providers, which have developed over generations and are backed by the criminal law system—there is no need for a litigious environment. I do not seek to abolish litigation; the certificates would simply raise the bar—not to some unreasonable level, but to where it was a generation ago.

I was a little puzzled by the Minister's mention of a skiing case, and I am not sure that we are talking about the same one. The 16-year-old in the Woodbridge school case behaved outrageously on the skiing slope and twice had to be reproved. The Court of Appeal judgment, which was reached only after five years of expensive and difficult litigation, is so narrowly drawn that it does not offer much hope. The kayak case was, I think, settled out of court for a substantial sum. I shall not describe the events again, but everything turned on the fact that two youngsters deliberately disobeyed an instruction that they had been given by a volunteer who had been posted at a difficult point on the waterway for precisely that purpose. He told them not to overtake, but they did so two minutes later,

causing an accident in which there was a lot of damage. He was found liable because he should have taken account of the fact that they might have taken no notice of what he said. That is nonsense. In that respect, I am grateful to the Minister who, in an earlier group of amendments, tabled a very good, structured amendment to tackle different age groups in different ways. That is what I was groping towards, and I am grateful to her officials for their helpful drafting.

Against that background, we could settle for amendment No. 64 rather than amendment No. 44. Indeed, discussions with the Scouts and, in particular, the Girl Guides—not, I confess, about the wording, but about the principle of drawing up a long list—suggest that they feel that amendment No. 44 would make the situation worse.

Amendment No. 4 echoes the same point. Just as we do not want to provide long lists of safety precautions, for the reasons that I set out, we do not expect to provide long lists of the risks. That goes back to the point made by the hon. Member for Denton and Reddish. People will be told of such things when their sons join a rugby club. I was very proud to take my twin sons along to Whitstable rugby club, which is a fine organisation. At the moment, people sign a certificate at most rugby clubs, committing themselves to the rules of the game. Some clubs insist that people also sign something saying that they will never sue the club, although they do not realise that such documents have no legal validity, and Whitstable does not ask for one. In future, the certificate that the Rugby Football Union would, I am certain, draw up for their clubs would say a few other things.

Photo of Lindsay Hoyle Lindsay Hoyle Labour, Chorley

The hon. Gentleman should stress that Whitstable is a rugby union club, because there are also rugby league clubs. We have very fine rugby league clubs in the north-west, and they should not be left out.

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

Indeed. I understand, Mr. Amess, that your co-Chairman is an enthusiastic supporter of a rugby league club, so far be it from me to ignore them.

Photo of Judy Mallaber Judy Mallaber Labour, Amber Valley 10:15 am, 19th May 2004

I have sympathy with amendments Nos. 4 and 66, but that does not necessarily mean that I interpret amendment No. 44 to say that there should be a long list of measures or that it contradicts the hon. Gentleman's attempt to avoid a massively long, bureaucratic list in amendment No. 66. That is not what amendment No. 44 says, and the hon. Gentleman might be misinterpreting its tenor, although how it is interpreted later will be a different matter. It is quite difficult to get one's head round all these amendments, but I do not see how they contradict each other or why his point about amendment No. 44 is necessarily valid.

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

Let me clarify the point by giving an example. When a sport takes place on a set of playing fields within a defined period, from the opening whistle to the closing whistle, the game has clearly defined rules. Although some cases are extremely controversial and members of the Committee are

unhappy with them, the hon. Lady's underlying point may arguably be right. However, when it comes to an activity such as adventure training, the activity is not nearly as clearly defined, as the hon. Member for Denton and Reddish made clear. I am not suggesting that we want to go back to the days when scout leaders turned a blind eye when young children diverted streams to stop older children from drowning while they crawled through when they were caving. The fact is that by its very nature adventure training is an ill-defined area.

The organisations that take children out into the hills do a wonderful job—to get them fit, to develop their leadership and risk management and to help them grow up—and do all the things whose importance the Secretary of State for Education has only recently commended in a speech. Such organisations have guidelines that cover safety. They are detailed guidelines and the organisations train their instructors and leaders well and so on. However, the problem is that they are guidelines; they are not hard and fast laws in the way that the rules of rugby union or rugby league are laws.

If we accepted the clause, I am told by the lawyers—not only the lawyer advising me, but the lawyers advising some of the other organisations—that court cases would then be mounted on the basis that not enough detail had been given in the guidelines or that a particular guideline had been broken. One of the examples given to me was that children are advised when orienteering and carrying packs not to run over broken ground. If anyone seriously thinks that instructors could prevent that while allowing any degree of independence to children in an orienteering competition, they must be joking.

Amendment No. 4 makes the point that the statement of inherent risk should be illustrative not exhaustive, and amendment No. 66 that it need be presented only once, so that we do not have any nonsense where courts argue that each time a scout troop goes out a certificate should be signed. I urge the Committee to support all the amendments in this group—the Minister's and my own—except for amendment No. 44.

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

I support the point made by the hon. Member for Canterbury, particularly about subsection 2(a) of amendment No. 44. One needs only to look at it to realise that lawyers would drool on seeing it. It is just a day out for the lawyers, and it is our job as legislators to try to keep lawyers out of things. We should be trying to pass laws so that decent people, acting in a voluntary organisation or in a voluntary role and trying to help young people, know what the law is and feel safe if they are complying with some fairly simple and clear requirements. The proposed subsection is the absolute reverse of clarity and simplicity. It would be a field day for lawyers, and one can imagine what that would be like.

In the previous sitting, the Minister urged me to send out a copy of Lord Hoffman's words in a House of Lords judgment. Having said that I had seen some aspects of the judgment and that I understood that it was a bit confusing—perish the thought—I received a

letter from the one of the people in the Hampstead Heath winter swimming club. The person in question is a partner in Slaughter and May, the City solicitors, and says that following the Tomlinson decision and Lord Hoffman's judgment:

''The Corporation then commissioned a report from the Amateur Swimming Association whose lawyer advised that the Tomlinson case was not directly applicable'' to the situation of the Hampstead swimming situation. It then

''had to obtain a written opinion from the Hon. Michael Beloff Q.C. to the effect that it was so applicable. Now the Corporation'', which is not, I suspect, devoid of lawyers,

''are planning to obtain their own Q.C.'s opinion! And it is still not known what the attitude of the Corporation's insurers will be to our proposal for self-regulated swimming.''

In other words, the law is exceptionally confusing to partners in Slaughter and May, to Michael Beloff, QC, to the Corporation of London and to the corporation's insurers. That is not the sort of law we want. It makes a fortune for lawyers, but it is bad for ordinary, decent people.

The minute I set eyes on subsection (2)(a) of the otherwise reasonable amendment No. 44, the hairs on the back of my neck stood up, because it looks like an absolute dream for the lawyers. As I have said, I represent Gray's Inn and Lincoln's Inn, so I am probably speaking directly against the interests of some of my voters.

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

One of the difficulties with the Bill is that whatever amendments we accept, its very existence will give lawyers fun. That is part of the problem, and it is one of the reasons why, having not resisted the Bill on Second Reading, I find myself resisting bits of it now. I share the ambition of the hon. Member for Canterbury and other members of the Committee, but groups such as the Scouts and Guides have said that although they like the idea, they are worried about it in practice. If one considers the practical aspects carefully, one sees that it is really hard to achieve that ambition without accelerating litigation, certainly in the short term.

Proposed new subsection (2)(a) seeks simply to place a duty on organisations to describe the sort of things that they have done to minimise risk, such as being risk assessed when they go on outings, having a safety code or ensuring that their sports leaders are aware of the rules of the game. The vast majority of voluntary organisations do such things as a matter of course, but we have to make law for everyone, including those who might not do them. We must therefore ensure that such activities are undertaken in a way that recognises the responsibility of the provider to take safety actions.

My hon. Friend the Member for Denton and Reddish is right that there is a risk of over-bureaucratising something that might best be dealt with outside the courts by changing our litigious culture, by building more confidence in safety practice and so on. We have some sympathy with that view, but if we are to have a statement of inherent risk, we must

balance people's rights and responsibilities. We need a clear framework in which one cannot simply state that there might be a range of risks, but that they will not be exhausted. We cannot have a system whereby one could present a statement once and then rely on it.

Let us be clear. A later amendment by the hon. Member for Canterbury is designed to clarify the test, but it suggests that parents will permit negligence in how their child might be treated, as long as it is not reckless negligence. We are giving away something substantial. We might better deal with this matter by deciding how the courts test the present law, rather than by changing it. If we do change it, however, we need to do so in such a way as to ensure that parents really can rely on these things and are regularly updated, and that the responsibilities of the provider are properly set out, including in relation to the particular activities that are taking place. That is why I urge hon. Members to support my amendments and to resist those of the hon. Member for Canterbury.

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

I have made my points on this subject, and I am not going to return to it except by putting one thing clearly on the record. The Minister suggested—she did so inadvertently, I am sure—that organisations such as the Scouts and the Guides were uncertain where they stood on this issue. The Girl Guides, which is the largest youth organisation in the country—

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

For the avoidance of risk, I said that the Girl Guides and the Scouts support the principle, but that they have expressed anxiety about the detail. I did not say that they opposed it.

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

Yes, but please let us be absolutely clear that the Girl Guides is 100 per cent. behind the provision. It came to the most recent press conference to support it; and although the Scouts raised some initial concerns on the detail, they now feel that they have all been met, and last Tuesday I received a detailed e-mail from their legal adviser making it clear not only how strongly the Scouts support this, but that they would be delighted to provide training for judges, which we will come to shortly.

Amendment agreed to.

Amendment made: No. 42, in clause 2, page 2, line 30, leave out subsection (2).—[Fiona Mactaggart.]

Amendment proposed: No. 64, in clause 2, page 2, line 33, at end insert—

'(2) The statement of Inherent Risk shall indicate—

(a) the relevant qualifications held and training completed by the persons who will be involved in providing the activities;

(b) that the person undertaking the activity shall obey the instructions given by the person who will be involved in providing the activities;

(c) that, if the person undertaking the activity is aged less than sixteen, the person's parent or guardian must—

(i) explain the risks set out in the Statement to the person, and

(ii) inform that person of the need to obey the person who will be involved in providing the activities; and

(d) that, if the person undertaking the activity is aged sixteen or over, he shares responsibility for the safe conduct of the activity.'.—[Mr. Brazier.]

Question put, That the amendment be made:—

The Committee divided: Ayes 8, Noes 5.

Division number 5 Adults Abused in Childhood — Clause 2 - Statements of Inherent Risk

Aye: 8 MPs

No: 5 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Amendment made: No. 46, in clause 2, page 2, line 35, leave out paragraph (a).—[Fiona Mactaggart.]

Amendment proposed: No. 4, in clause 2, page 2, line 37, at end insert—

'(aa) indicate the types of risk likely to be encountered when undertaking the activity, but need not be exhaustive.'.—[Mr. Brazier.]

Question put, That the amendment be made:—

The Committee divided: Ayes 9, Noes 3.

Division number 6 Adults Abused in Childhood — Clause 2 - Statements of Inherent Risk

Aye: 9 MPs

No: 3 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Amendment proposed: No. 66, in clause 2, page 2, line 46, at end insert—

'(3A) The Statement of Inherent Risk—

(a) may relate to the activity or activities which are regularly administered or managed by or under the control of the volunteer, employee, voluntary organisation or volunteering body or to an exceptional activity or activities including a school visit, and

(b) need only be presented once to the adult person concerned or the parent or guardian of the child concerned.'.—[Mr. Brazier.]

Question put, That the amendment be made:—

The Committee divided: Ayes 9, Noes 3.

Division number 7 Adults Abused in Childhood — Clause 2 - Statements of Inherent Risk

Aye: 9 MPs

No: 3 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Amendment made: No. 48, in clause 2, page 2, line 46, at end insert—

'(3A) The Statement of Inherent Risk shall be signed—

(a) by or on behalf of the person presenting the Statement;

(b) if that person is an employee, on behalf of the voluntary organisation or volunteering body by whom he is employed;

(c) if the person undertaking the activity is aged at least sixteen, by that person;

(d) if the person undertaking the activity is aged less than sixteen but at least eleven, by that person and by his parent or guardian;

(e) if the person undertaking the activity is aged less than eleven, by his parent or guardian.'.—[Fiona Mactaggart.]

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

I beg to move amendment No. 49, in clause 2, page 2, line 47, leave out subsection (4).

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

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

No. 51, in clause 2, page 3, line 2, after 'duty' insert

'in respect of the participation by a person in an activity to which the Statement related'.

No. 7, in clause 2, page 3, leave out line 12 and insert

'the volunteer has shown a reckless disregard for safety.'.

No. 8, in clause 2, page 3, line 12, at end insert—

'(4A) A court shall not take the absence of a Statement of Inherent Risk into account in deciding whether a volunteer is negligent.'.

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

I thank the hon. Member for Canterbury for drawing to the Committee's attention the detailed letter from the Joint Committee on Human Rights. If hon. Members have not seen it, I advise them that they should do so. I was planning to raise it now, because it deals with clause 2(4), to which the amendments relate. The Joint Committee advised the hon. Gentleman on other clauses, but wanted to reserve its view on clause 2 until now.

Photo of Judy Mallaber Judy Mallaber Labour, Amber Valley

On a point of order, Mr. Amess. Can the document be circulated to members of the Committee? I should have thought that we should see it, as it has been referred to.

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

If the Minister has a copy, it would be perfectly in order for it to be circulated.

Photo of Derek Wyatt Derek Wyatt Labour, Sittingbourne and Sheppey

Further to that point of order, Mr. Amess. It will take five minutes to read the document. Can we suspend the sitting in order to do so?

Photo of Sir David Amess Sir David Amess Conservative, Southend West 10:35 am, 19th May 2004

If that is the wish of the Committee, it is quite in order to suspend the sitting for five minutes for photocopies to be taken and the document circulated.

Sitting suspended.

On resuming—

Photo of Tim Boswell Tim Boswell Shadow Minister, Home, Constitutional & Legal Affairs, Shadow Spokesperson (Business, Innovation and Skills), Shadow Minister (Constitutional Affairs) 10:40 am, 19th May 2004

On a point of order, Mr. Amess. I draw the Committee's attention to the fact that we have spent five minutes or more in recess in scenes of amiable confusion of the sort that I recall occurring during meetings of the European Council when anything difficult happened. The reason for that—I do not speak in a spirit of censure—is that the Joint Committee on Human Rights report was not available in advance to all Committee members.

Perhaps we might ask you, Mr. Amess, to use your good offices in communicating with the Clerk to the Joint Committee in order to suggest that it should be standard operating practice in relation to private Members' Bills for its reports to be made available to all Committee members in advance, so that we can see them and so that such a situation can be obviated in future.

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

That is a very helpful, sensible suggestion. I assure the hon. Gentleman that action will be taken on his good advice.

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

Clause 2(4) is intended to ensure that the courts have regard to statements of inherent risk and influence the approach that is taken in determining negligence claims. Although I note the various concerns advanced in support of the proposals, I do not believe that they are sufficient to justify a change in the law that would unfairly benefit negligent defendants at the expense of injured claimants. They could also result in a reduction of the protection that is available under the law for both adults and children participating in the activities that the Bill covers. Therefore, amendment No. 49 seeks to delete clause 2(4).

The hon. Member for Canterbury may say that the amendment seeks to remove the heart of the Bill, and I understand why he thinks that that is so. Some aspects of the statement of inherent risk—encouraging people to be aware of safety regulation, encouraging participants to inform their children of the need to listen and so on—are factors that might assist in reducing litigation and getting a better safety culture around voluntary activities.

Clause 2(4) deals with the impact of that statement in terms of litigation. We should think about it from the other end of the telescope and permit volunteers, rather than other organisers, to be a bit negligent. There is no question about what we are trying to do. We are not trying to say that if people are not negligent, we will ensure that they are not sued. We are seeking to permit them to be a bit negligent. That will result in accidents and injuries, and we need to think about what the consequences will be.

Photo of Mr Andrew Bennett Mr Andrew Bennett Labour, Denton and Reddish

Can my hon. Friend give me an instance of where someone was a bit negligent, as opposed to negligent?

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

Yes. There is one case in which the leader of a gorge walk had a number of opportunities to abandon the activity. The weather forecast was negative, a trained Army group came down the gorge saying, ''We are not going up there, it is not safe'' and he had left the rope that he needed in

the car. There were six other factors, too. That leader was recklessly negligent. If he had merely done one or two of those things—for example, not checked the weather forecast, which proved significant—he would have been negligent, but not recklessly negligent.

Photo of Mr Andrew Bennett Mr Andrew Bennett Labour, Denton and Reddish

I was not asking about that. I was referring to the difference between being negligent and being a bit negligent.

Photo of Fiona Mactaggart Fiona Mactaggart Parliamentary Under-Secretary (Home Office) 10:45 am, 19th May 2004

In that case, the person would have been a bit negligent. In fact, he would have been a lot negligent. However, the hon. Member for Canterbury was suggesting that the tests should be based on the act of being recklessly negligent. The person whom I have described was recklessly negligent; he went further than mere negligence. The ambition of clause 2(4) is to allow negligence to take place, as long as it is not reckless negligence.

Clause 2(4) would require the court to

''have regard to the Statement of Inherent Risk so as to recognise that certain risks are inherent in activities and that accidents may occur without negligence''.

That is fine. It states that the court should

''take note of the Statement of Inherent Risk in determining whether the person or persons suffering harm had knowingly accepted that there were risks involved''

''only uphold any claim negligence or breach of statutory duty where it would manifestly be unreasonable not to do so''.

Under the amendment tabled by the hon. Member for Canterbury, the court would also uphold the claim when the person was recklessly negligent.

There will be less protection for people who have signed a statement of inherent risk. That is the clear intention of the provisions. They will cover children and will mean that people who have signed statements of inherent risk are less protected than those who did not. Perhaps the most important illustration of the unfairness of the provisions is that the injured participant can often be a child. It cannot be right to change the law in a way that would result in the standard of care owed by a volunteer to a child being lower than that which is owed in other areas of litigation, such as, for example, by a employer to an employee. We have a particular responsibility to protect children, yet that would be the effect of clause 2(4).

The court would be able to find negligence only when it would be manifestly unreasonable not to do so or, under amendment No. 7, when the volunteer has shown not only a disregard for safety, but a reckless disregard for it. The clause would change the existing law and would mean that a child whose parents had signed a statement of inherent risk and who was injured while participating in a sporting or adventure activity would receive less protection than a child or adult who had not signed a statement or people who had been negligently injured in other situations.

Lembit Öpik (Montgomeryshire) (LD) rose—

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

I shall give way to the hon. Gentleman, because he is looking so eager, but I am trying to make progress. Last time I gave way, it led to a further intervention.

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

It is not only a volunteer who owes a duty of care to a participant. Participants owe a duty of care to each other. Under the provisions, a volunteer would have to fulfil a lower standard of care to the participant than the participant would have to observe in respect of other participants. For example, a voluntary referee in a rugby match would be subject to a lesser duty of care than an opposing prop forward. That is not right. I do not believe that that is the intention of the hon. Member for Canterbury, but it will be the result of the Bill.

In addition to the unfairness of the legal disadvantage, the proposal would go directly against the Bill's intended aim of promoting volunteering and participation in activities. For example, what sensible parents would agree to sign a statement allowing their children to participate in an activity in the knowledge that their chances of making a successful claim in the event of those children being negligently injured would be reduced by so doing? The statement of inherent risk would have to state clearly and fully exactly what the participant's legal rights were and how those rights would be affected by its having been signed. It is important that that is the case. We are suggesting that the statement would have a substantial impact on people's rights, but if it did not make that clear, participants could legitimately claim that they were not in full possession of the facts when signing it. The likely result would be a decrease in participation, and the aim articulated by some hon. Members on Second Reading and in Committee in speaking about encouraging children to lead healthier and more active lives could be threatened.

Something else concerns me and, I think, some other members of the Committee. I think that it was Dickens who claimed that the law was an ass, and I believe that he would have a lot of sympathy with us. Many people share the view that lawyers have had too much fun in this arena—or not that they have had fun, perhaps, but that they have done too much. The consequence is that people are confused and possibly frightened of participating, and none of us wants that. By introducing greater confusion in the law, however, the statement could create greater uncertainty, which would allow another opportunity for that feature of the lawyer class to be displayed.

If the statement were voluntary, it could lead to two people who were involved in an accident having different legal rights because only one had signed it. The hon. Member for Canterbury rightly points out that it is voluntary, but it would lead to more cases being contested in court. If the statement were a prerequisite to participation in an activity, people would be unlikely to sign it.

I have identified four possible regimes that can be applied and that might need to be treated differently under the law. First, providers of activities could use a statement of inherent risk. Secondly, they could use other guidance and agreed standards. Thirdly, they could use both. Fourthly, they could use neither, but nevertheless use the provisions that would have been provided by a statement of guidance.

The Bill would require the statement of inherent risk case to be considered differently from the other regimes. Our view is that it would be wrong for there to be differences in law. Even if they were only subtle differences, cases would be made more complicated and the resulting uncertainty would be likely, at least in the short term, to increase litigation, as the new law was tested in the courts. Such uncertainty is also likely to increase insurance premiums. The account given by my hon. Friend the Member for Amber Valley (Judy Mallaber) shows that insurers act conservatively by increasing premiums until the courts' interpretation of the various situations that could arise under new legislation is known.

We have referred to judicial decisions, but I shall try to avoid swapping court cases. Nevertheless, it is important that we deal with cases in which the courts have reached a decision. It is inevitable that we shall not agree with every judicial decision, but there is no evidence that courts have recently failed to take all relevant factors into account when reaching a decision. As a matter of course, the factors to be considered include the relevant guidance and standards of safe practice; but that is only one factor among many. For example, they will also consider age, experience, the ability and behaviour of the participant, whether the possibility of injury had been foreseen, the likely seriousness of possible injuries, and whether similar injuries had occurred in the past. It is of the utmost importance that the courts are able to weigh up all the relevant factors, so that they can reach properly considered decisions that are fair to all concerned.

It is not my job to act as a spokesman or an apologist for judges or to justify their decisions, but what evidence we have of judicial decisions does not justify an unseemly rush to the statute book. The courts recognise that a balance needs to be struck.

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

The list of things that the Minister said judges now consider did not include inherent risk.

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

In a recent judgment, Lord Hoffmann said:

''People must accept responsibility for their own actions and take the necessary care to avoid injuring themselves or others.''

He also said:

''Mr Tomlinson was freely and voluntarily undertaking an activity which inherently involved some risk'', and went on to make the judgment. That quotation is from the case of Congleton borough council, which I cited in our previous sitting. As Lord Hoffman made clear, the concept of ''inherent risk'' in the activity is taken into account; that is the phrase that he used in his judgment before we coined it in the Bill.

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

I am trying to resist taking too many interventions, but I will do so.

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

I thought that I made it clear earlier that Lord Hoffmann's House of Lords judgment is so unclear that leading firms of City solicitors, leading Queen's counsel on this subject and the Corporation of London cannot agree on what he decided.

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

In my experience, leading firms of solicitors do that all the time, and that is part of our problem. Our court system operates by precedent. Very possibly, what lawyers are arguing about is the extent to which that judgment is applicable to the Hampstead Heath case, and not whether there is inherent risk in the activity. I have not seen the advice to which my right hon. Friend refers, but that, rather than inherent risk, is probably the issue with which we are now dealing. I hope that I am right in thinking that.

Despite having been rude about the courts earlier, I should say that they recognise that there is concern about litigation and its extent. Lord Steyn said only last month that

''the courts must not contribute to the creation of a society bent on litigation, which is premised on the illusion that for every misfortune there is a remedy.''

That is what we are talking about. We know that we are making progress when the House of Lords makes such statements and says, as Lord Hoffmann did:

''People must accept responsibility for their own actions and take the necessary care to avoid injuring themselves or others.''

Those views of the House of Lords are of great weight; they should influence the lower courts, and I am confident that they will do so. I am not sure whether they will apply to my right hon. Friend's constituency case, but I hope that they will do so and that the advice that he has received saying that they do will prevail. That would be the sensible resolution.

The common law on negligence has ebbed and flowed over the years. The courts have sometimes extended and sometimes contracted the situations in which a person may be held liable for causing harm to another. Certain hon. Members have expressed the view that the law has recently been extended and that the purpose of the Bill is to retract that extension. That is not necessary and, in any event, the Bill is disproportionate in addressing that aim. It would unjustly extend the law in favour of negligent defendants over injured claimants, including children.

I recognise the concerns that have been expressed about the cases relied on to support the need for the Bill, but I do not believe that we have yet reached a stage at which Parliament ought to act, particularly in view of the recent judgments of the House of Lords. We do not change the law every time a court reaches a conclusion with which we disagree. That is one of the reasons for having an appeals system and a House of Lords.

I have set out some of the unintended consequences and harmful effects that the Bill would have. The hon. Member for Canterbury also bases his case on the need to combat the fear of litigation. The evidence suggests that that might well be misplaced or exaggerated,

because claims are not increasing in the way that he suggests. The compensation recovery unit must be informed of all claims for the purpose of recovery of social benefit, and it has a comprehensive record of claims. Figures that it provided show that the number of accident claims made to insurers decreased by 9.5 per cent. in the year to March 2004.

Photo of Julian Brazier Julian Brazier Shadow Minister (Foreign and Commonwealth Affairs) 11:00 am, 19th May 2004

I am as keen as anyone to make progress, but quoting those umbrella figures, of which the sort of cases that we are referring to constitute a tiny proportion, convinces nobody. I speak as a former professional statistician. The crucial point that I asked the Minister to take on board is that all—not most—of the cases that have so far been produced as unreasonable have occurred in the past 11 or 12 years; many of them happened in the past four or five years. The problem has arisen during the past generation, and it did not exist before.

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

Indeed, it has arisen during the past generation, and about five or six years ago, the number of claims reached a high.

I will deal with the first question and then move on to the second. The first question concerns those general figures involving every case. Let us examine public liability accident claims, which deal with the sort of cases that we are talking about and the area to which the Bill relates. They decreased by 16.7 per cent., which is a reduction of more than 18,000 claims. Claims are currently reducing and the House of Lords is making it clear that some activities are inherently risky. In my view, this legislation is designed to deal with a position that is being dealt with.

Photo of Jacqui Lait Jacqui Lait Shadow Minister, Home, Constitutional & Legal Affairs

The Minister has quoted the reduction in the number of public liability cases as being 18,000. Will she break that down between claims involving sports and adventure, and claims in other spheres, such as the workplace, where there would be claims for public liability? There are rising safety standards in those spheres.

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

As I understand it, those comprehensive figures are not broken down in that way. Nevertheless, the evidence suggests that in this area there is currently a reduction in claims. I cannot give the hon. Lady statistical evidence, but I can give the more anecdotal evidence that we have collected, because that is the only sort of evidence that we have. While the fear remains extremely high and is something that we must address, having talked to insurance companies and others, it is clear that the numbers of claims do not seem to be increasing. They seem to be beginning to decrease. That is partly because in the voluntary activity area as much as in other areas, we have better safety standards. That is a good thing and we should welcome it.

I recognise that the fear of litigation is a concern for some volunteers, although our evidence is that it is not the major barrier to volunteering. To deal with that fear, the answer is not to deprive those with a genuine claim from receiving the compensation to which they are entitled. They could have a substantial injury that interferes with their ability to earn or that could spoil

the whole of their life. That would shift the responsibility for meeting the costs arising from the injury from the negligent person responsible to the injured person, the NHS and the taxpayer.

If the subsection were not seeking to allow people to be negligent, we might have wanted it as something that clarified and reduced claims. However, I do not think that it is right to include something that seeks to permit negligence. We and the House of Commons would be in a difficult position if we had to face any parent whose child had been a victim of negligence and who could not get justice because of the passage of this legislation.

Our actions need to be properly focused and evidence-based, with wide consultation. We need to address the real problems and to deliver positive outcomes, and that is what we are seeking to do. We have established an insurance cover working group; we have undertaken a review of public liability insurance; the Better Regulation Task Force is focusing on these issues; we are developing and improving risk management training and techniques to prevent accidents from occurring in the first place; we are working with groups of voluntary organisations to reduce insurance costs and to improve safety standards; and we are trying to develop an infrastructure to do that. That approach has already proved successful in taking forward work across Government. More widely, it has provided effective solutions to problems in relation to employers' liability compulsory insurance, for example.

I urge the Committee not to keep subsection (4). The other mechanisms will deal with the problem, which is largely one of perception and insurance. In my view, the solution that is offered would permit negligence, and we would not support the consequences. I know that this legislation is well meaning, because I have been engaged in trying to make it work, but however well meaning it is, legislation is a blunt instrument and can have unintended consequences.

If we work in the way that I have suggested—considering the findings of the Better Regulation Task Force study and other initiatives such as the insurance cover working group, and so on—we can have a more focused, timely and proportionate way of addressing the concerns that exist, rather than introducing the measures proposed in clause 2(4), which would unfairly disadvantage negligently injured participants, including children, and create confusion and uncertainty in the law. I propose that the subsection be deleted from the Bill.

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 did not intervene on the Minister at her request. Everything that I will say will directly relate to what she said.

First, I am surprised that the Minister persists in taking a position that, in my view, manifestly contravenes what this part of the Bill and the Bill as a whole try to do. She keeps talking about the danger of allowing people to be more negligent. However, the issue is not about encouraging opportunities for negligence; it is about increasing the personal

responsibility that people need to take when deciding on what they will allow themselves and those in their charge, such as their children, to do.

The Minister is, to quote loosely, freely taking part in an activity inherently involving some risk by being involved in the progress of the Bill. It would have been safer for her to stay at home. If she advanced the arguments available to her, she could claim that the hon. Member for Canterbury has been negligent in not warning her that taking part in these proceedings could cause her emotional distress, but I expect—or hope, at least—that even she would have regarded that as unreasonably patronising to her and to other Committee members. However, in effect, that is what she is saying to the public—that they are not capable of making these decisions and that they must be protected.

From what the Minister said on behalf of the Government, it seems that this Administration are afraid to trust the public to have more responsibility for their actions with regard to volunteering. The hon. Lady set out four regimes. I do not think that I need to address them individually, but it was particularly important that she said that one reason why she was resisting this element of the Bill was that it would increase litigation, at least in the short term.

I am quite encouraged by that, because I assume that the Government will therefore oppose a ban on fox hunting as that will unquestionably increase litigation. I assume also that they will oppose ID cards because an enormous raft of litigation will come with them. They should also oppose their own position on this Bill, because there has been an increase in litigation in the past five or six years, and there has also been an increase in out-of-court settlements.

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

I referred to the increase in litigation only because that is the reason why the Bill has been introduced, as the hon. Gentleman knows. I referred to it not because I am opposed in general to litigation—although I am a bit—but because the Bill is intended to solve the problem of increased litigation.

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

That is even worse; the Minister does not mind an increase in litigation except inasmuch as it might be caused by the hon. Member for Canterbury. This is beginning to sound like a personal vendetta against an hon. Gentleman, with whom I disagree in party political terms, but with whom I have a great deal of accord in terms of what he is trying to do with the Bill.

The Minister cannot have it both ways; she cannot use the argument that—again, I quote loosely—in the short term at least there could be an increase in litigation, and then disregard it or limit it to this Bill. To be charitable to her, I assume that she is now withdrawing that as one of her arguments against this element of the Bill. To do anything else would be inconsistent.

The Minister has provoked me a bit now. She claimed that there had been a 16.7 per cent. reduction in litigation.

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 will allow the Minister to intervene so that she can put on the record exactly what she meant when she talked about that.

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

There has been a 16.7 per cent. reduction in public liability insurance claims.

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

It is useful that the Minister put that on the record. Can she now explain why the insurance premiums being demanded from the organisations involved in the activities that we are discussing have sky-rocketed and continue to increase at a rate many times greater than inflation? If what she has just said on the record is correct, the Government have some responsibility to explain what they will do to prevent the people who provide volunteering opportunities from being ripped off by insurance companies. Everyone who reads the record of this debate will learn that she thinks that there is less risk of organisations that provide volunteering activities being sued, but still an increase in their insurance premiums.

Photo of Fiona Mactaggart Fiona Mactaggart Parliamentary Under-Secretary (Home Office) 11:15 am, 19th May 2004

The hon. Gentleman asked what I was doing about insurance. It is important that I say some things on the record about that. I talked about the work of the insurance cover working group. In addition, we are encouraging work in the voluntary sector, and idRisk has brought together a group of underwriters to provide a new form of insurance cover for the voluntary and community sector. We hope that costs will be reduced. Charity Logistics is making a consortium of major charities to reduce costs. The Association of British Insurers is providing briefings for voluntary organisations about reducing costs. It asserts that the increase in premiums is not connected to an increase in claims.

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 wait to see whether the Government's actions will reduce insurance premiums, which went from £300 to £5,000 almost overnight, and then back down to £300 or £400. I doubt that they will. The Minister is hiding behind the idea of claims, which will not deliver the result that we want.

I remind the Committee that the Minister quoted Lord Hoffmann, who said that we need to recognise that for every misfortune there is not necessarily a remedy. If that is the case, the Minister is arguing for the Bill as it stands, because it is meant to protect organisations from specious claims, which cost money if they get to court, and replace that with a more reasonable regime where individuals take personal responsibility. If she, like me, believes in the words that she quoted, I suggest that she should take Lord Hoffmann's advice, support the amendments of the hon. Member for Canterbury and oppose her own amendments.

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

I scarcely understand the Minister's position, as it does not recognise that things have changed. We are not talking about a static situation. All of us who support the Bill, and in particular this clause, are in favour of retracting the concept of negligence a little to what everybody thought that it

was before there was a change in the law in 1977, which has had a peculiar effect 20 years later. Now, lawyers line their own pockets as a result of litigation and judges go along with them.

Photo of Tim Boswell Tim Boswell Shadow Minister, Home, Constitutional & Legal Affairs, Shadow Spokesperson (Business, Innovation and Skills), Shadow Minister (Constitutional Affairs)

I have much sympathy with the right hon. Gentleman's comments. Does he not agree that there is a false premise in the Minister's assertion in that, in some way, making it easier to claim for negligence acts as a deterrent to volunteers and others in permitting negligent activities? Surely there is a tenuous connection.

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

I accept that point. Sport, inherently dangerous activities and just plain play, in which children indulge, cannot be made risk free. Learning to judge risk is one of the benefits that children get from play and sport. Generations of children have survived bumps, scrapes and broken legs. Children have not changed, but recently society has done.

Society has changed because of judge-made law, which is making it more difficult for people who want to volunteer to help their local community. That became clear to me when last year, on behalf of the Government, I conducted the review of children's play. At virtually every regional consultation, we were told, for example, that swings had been chained up because the children could not be supervised. People had been advised to do that by their lawyers because otherwise the insurers would not cover them. It is no good saying that there are working parties on this; I am in favour of improving the insurance situation, but if we leave the law as it stands, all we will be doing is clubbing together more to pay the extra costs. That is the arrangement that will result, which is not sensible.

The Association of British Insurers may be having discussions with the Government about reducing the cost of insurance, but its members are at the same time sending out an increased number of bills to practically every voluntary organisation in the country. I am not sure which aspect we should take seriously. I cannot believe that we will not have to change the law in the end. We can improve safety and people's attitude to making things safer. We can also reduce risks, but they cannot be eliminated. Problems will arise while the risks remain, and it is up to us to change the law.

As I may have said before, gunfighters who appeared on the scene in old B-movies used to say, ''We deal in lead.'' In this place, we deal in law, and we have obligations. We have a problem that will not be resolved by the various changes that the Minister has mentioned, welcome though they are. We believe that a change in the law is necessary. The clause is the guts of the Bill, and if we do not accept the amendment, the necessary change will not be made. If the Government believe that it is not as well-worded as it should be, I am sure that everyone in the Room would be delighted if the lawyers at the Department for Constitutional Affairs came up with better wording on Report. We would say, ''Hallelujah,'' and welcome it. We would put it through like a dose of salts.

The hon. Member for Canterbury is not so vain as to insist on his wording. He wants a change in the law, and if that change is not quite right, I am sure that we would all welcome the Government getting it right. It must be done. We cannot mess about any longer.

Photo of Andy Reed Andy Reed Labour/Co-operative, Loughborough

It is always fascinating to listen to my right hon. Friend. I do, however, have a small difficulty. We have conceded to making the statement of inherent risk voluntary, but I am concerned about such a twin-track approach. Seven or eight members of a rugby team, for example, might have signed the statement of inherent risk, while the others did not do so. The Minister raised that issue. How would my right hon. Friend address that specific problem?

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

I understand that it would be voluntary as far as the rugby club was concerned, but that the club would probably say that it was not voluntary for their members. Members who were going to be playing rather than boozing—there is, of course, an inherent risk in boozing—would be asked to sign the statement of inherent risk when they signed their subscription. With that happy thought, I shall sit down.

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

This is the last set of amendments that deals with the core of the Bill. I shall take three or four minutes to reply the main points made, and will then briefly explain my own amendments on the concept of reckless disregard.

The central point is that we are not trying to permit negligence. It is wrong to suggest that the threat of instructors being sued in the civil courts provides safety. Safety comes from the culture, commitment and training of the instructors involved, and is backed by criminal law. In respect of New Zealand, the great disaster on Everest in 1997 is a concrete example. The New Zealand mountaineering instructor kept going back to rescue admittedly paid clients. He got three of them off the mountain alive, and died trying to save the last one. It was not the laws of contract that kept that man going. We are trying to encourage the sort of structured activity that is under attack from these cases, so that kids do not try to take their risks outside.

Another point needs to be highlighted before the sitting is adjourned. The rest of the voluntary sector can tackle its problems by increasing safety further. We are dealing with the one quarter of the voluntary sector where risk is inherent, and where we will destroy all the challenge and excitement by making things absolutely safe. That is the fundamental point.

The Minister keeps saying that the number of cases is declining. However, we are dealing with only a tiny proportion of all litigation. I think that I read out on Second Reading six examples of cases currently under way for the Central Council of Physical Recreation.

It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at half-past Two o'clock.