Clause 2 - Statements of Inherent Risk

Promotion of Volunteering Bill – in a Public Bill Committee at 2:30 pm on 19th May 2004.

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Amendment proposed [this day]: No. 49, in clause 2, page 2, line 47, leave out subsection (4).—[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. 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 Julian Brazier Julian Brazier Shadow Minister (Foreign and Commonwealth Affairs)

I wanted briefly to describe to the Committee a few current cases, details of which were sent to me by the insurance adviser to the Central Council of Physical Recreation, to show that there is a real problem.

A football referee is being sued because the local park pitch had a small hole in it and a goalie fell into it. That is a real case. It has been reported in The Sun. All the cases that I am citing have had to be disguised, for obvious reasons, although in the first the person concerned was willing to go on the record. A member of a walking group took part in a trip with about 15 friends, one of whom was injured. The person who originally organised the group was sued on the ground that he was the de facto group leader, simply because he was the most qualified person there. The trip took place in Wales in the summer of 2000. The individual is an active charity worker and the walk was raising money for charity. The case continues.

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

I wonder, following this morning's debate about the statement of inherent risk, whether the hon. Gentleman agrees that people who had got together as a group of friends might not have signed a statement of inherent risk, so that they would not be covered under the Bill. Can he think of anything else that could be done to enable groups of that sort to be covered? They are vital as well.

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

The hon. Gentleman has made a good point, but as they were fundraisers I think that there is a strong chance that they would be covered. For example, there is a very nice charity—I shall not mention its name as it has not given me permission to do so—that fundraises on a large scale for a medical cause. Its representatives wrote to ask whether I could do various things, which would have been way outside the scope of the Bill. When I replied explaining what we are doing, the charity replied: ''That's terrific, because people who fundraise for us often take part in the sort of activities for which we could use certificates.'' I do not know which charity the man in question was raising money for, but I hope that once it becomes known that the statements of inherent risk are available, their use will become standard practice for those who want to provide protection.

I shall not detain the Committee by reading my entire list of cases, but I shall give one more example. A dance instructor was sued when a member of the dance club slipped on a highly polished floor. The incident took place in spring 2000 at a club in west Yorkshire. The floor had been treated to reduce the likelihood of a slip, but a reasonably shiny surface is necessary for dancing. The case continues.

I do not want to bang on, because we have been round and round the buoys on this issue, but my point is that whereas in other areas of activity, including other parts of the voluntary sector, it has been possible to drive down the risk of litigation by the simple factor of driving out risk altogether, we do not want to be reduced to that in this context. We do not want sport, adventure training and many forms of recreation to become risk free. We need those forms of activity to involve people to a degree in taking responsibility for their risks. The Bill is, crucially, about that.

Photo of Judy Mallaber Judy Mallaber Labour, Amber Valley

Does the hon. Gentleman take the view that the removal of clause 2(4) will mean that it will not be possible for the statement of inherent risk to be considered in a court of law, or that it will not be relevant in a court of law? I am not a lawyer and I genuinely do not know the answer.

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

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

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

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

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

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

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

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

Photo of Judy Mallaber Judy Mallaber Labour, Amber Valley

Will the hon. Gentleman give examples of what the ''reckless disregard'' wording would cover, which the current wording would not? My right hon. Friend the Member for Holborn and St. Pancras talked about retracting the concept of

negligence a little. However, the wording that the hon. Gentleman suggests seems to raise the stakes in terms of the negligence that might or might not be allowed, and I am not comfortable with it.

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

It is an intermediate standard. The only case in British law is Woodridge v. Sumner and another. The Committee might find it burdensome if I read out the full brief, so I shall give a flavour of it, as it was an example of a case that succeeded on the negligence standard in the lower courts. The Appeal Court, however, held it not to meet the higher standard. It quoted volenti non fit injuria, which the right hon. Member for Holborn and St. Pancras mentioned, and then said that it should apply the higher standard in such a case. The summarising paragraph of its judgment reads:

''An experienced horseman, while taking part in a competition for heavyweight hunters at a horse show, galloped his horse so fast round a corner of the arena that it took a wide sweep to the edge of the course. After completing the turn the horseman got the horse almost straight onto its course, but the horse then became temporarily out of control and plunged some 20 or 30 yards down a line of shrubs bordering the arena to a point where the plaintiff, a photographer, was standing by a bench in line with the shrubs. The plaintiff, who had no experience of horses, took fright at the oncoming horse, and, in attempting to save a lady sitting on the bench from danger, stepped or fell back into the path of the horse and was knocked down and seriously injured. In an action for damages for personal injuries, the trial judge found that the horseman had ridden his horse too fast round the corner of the arena and that his endeavours to bring his horse back into the arena when he knew or ought to have known that it would be dangerous to persons in the place where the plaintiff was, constituted negligence. He awarded the plaintiff damages''.

The Court of Appeal's view was as follows:

''A person attending a game or competition took the risk of any damage caused to him by any act of a participant done in the course of and for the purposes of the game or competition notwithstanding that such act might involve an error of judgment or lapse of skill, unless the participant's conduct was such as to evince a reckless disregard of the spectator's safety''.

That is one example. There is always a risk of error of judgment in adventure training and certain types of sport. If we are to apply to them the same standard of negligence that we would apply in the rest of life, the only solution is to try to squeeze them out or to make them absolutely safe—a solution at which the Minister has constantly hinted. If we do so, young people will find other ways of amusing themselves.

Photo of Judy Mallaber Judy Mallaber Labour, Amber Valley

Given that the Bill now covers the whole range of volunteering organisations, and the scope is not limited, does the hon. Gentleman believe that his definition is relevant to all those areas that have nothing to do with adventure and sports, and that all the other volunteering groups could be brought within the Bill's scope?

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

Apart from the very distinguished report on the wider issue of recreation, which covers a very wide spectrum of activities and comes from the review chaired by the right hon. Member for Holborn and St. Pancras, which I understand was established by the Government, some of the strongest submissions that I received were from voluntary organisations such as St. John Ambulance, which believe that it is unfair that the same level of negligence should apply to

voluntary organisations and those who work for them in carrying out voluntary activities. Members of the Committee may genuinely disagree, but it seems fair to protect volunteers and voluntary organisations in this way. Relatively few cases have nothing to do with sport, adventure training and recreation. Is dancing a recreation? I argue that it is, and that it is perfectly reasonable to include it in the context that we are discussing.

Amendment No. 8—my final amendment in this group—simply makes it clear that no one needs to have an SIR, and that a court should not take it into account if people do not have them. The purpose of the amendment is to ensure that we do not make things harder for people who choose not to produce SIRs.

Unless we have a stand part debate for this clause, this will be the last debate to deal with the heart of the Bill. We still have significant debates to come on additional provisions, but I want to tell Committee members, who have toiled long and hard on this voluntary activity, something about coming to a Committee on a private Member's Bill.

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

Indeed. Today's events on the Floor of the House have shown it to be more hazardous than we realised.

The problem has sprung up in the past 12 years, and it is one of the great problems of our era. As the right hon. Member for Holborn and St. Pancras said, it appears to stem from legislation that has lain dormant for a long time. It stymies voluntary activity in sport and recreation in this country, and it is the reason why 80,000 are children waiting to become guides and boy scouts, but cannot do so. It is also the No. 1 cause of people leaving the voluntary sector. The Bill is designed to tackle the problem, and this clause is at the heart of the Bill.

Photo of Andy Burnham Andy Burnham PPS (Rt Hon David Blunkett, Secretary of State), Home Office

It is a pleasure to contribute to the debate. As well as being a Government stooge, I have a few views of my own to add. I have played a lot of sport and have been on the receiving end of a few reckless knocks. I have probably also given a few out. My hon. Friend the Member for Loughborough and I are playing on the parliamentary football team tomorrow; we are playing the Iraqi national team, so some inherent risk may well be involved in that encounter.

I have a huge passion for and interest in sport, and I believe that the hon. Member for Canterbury (Mr. Brazier) is right to address this problem, which is besetting sport. My constituency has a lot of rugby league clubs, as does that of my hon. Friend the Member for Chorley (Mr. Hoyle). In recent years, insurance premiums in rugby league have soared from a few hundred pounds into the thousands. I have heard stories about ex-players being contacted and asked whether they want to bring a claim for an injury that they sustained when they were playing. There is no doubt that there is a genuine issue to be addressed.

However, I must say to the hon. Member for Canterbury—perhaps he will not like this as much—that I foresee problems with the solution that he has proposed in clause 2. I see three problems with the system of the statement of inherent risk. First, a lot of bureaucracy will be involved in ensuring that all the paperwork is in order. There will be lots of pieces of paper flying around, and clubs will have to find out who has signed what.

Secondly, being asked to sign statements could put people off sport, especially with regard to children whose parents have doubts about their playing certain sports. We must consider that it might turn people off rougher sports. People who would currently go into such sports with their eyes open and knowing the risks might decide not to do so if their attention were focused on the risks.

Photo of Lindsay Hoyle Lindsay Hoyle Labour, Chorley

My hon. Friend makes an interesting point. There was a case involving a Leigh Miners player and a player from Wigan St. Patrick's in which one player's mouth was damaged and his jaw was broken in a tackle when the other player kicked out too hard. Witnesses were asked to give their views, and even though the tackle was thought to be quite legitimate, it ended up with one player being sent to jail. The referee and people in the crowd had to give statements and come forward as witnesses. Everyone was involved. If anything is likely to put people off rugby league, it is incidents such as that. I hope that we will never have to see such an event again. People in rugby league are aware of what can happen, and about having to fill in forms and make witness statements. They have seen that already. That case arose in the constituency of my hon. Friend the Member for Leigh.

Photo of Andy Burnham Andy Burnham PPS (Rt Hon David Blunkett, Secretary of State), Home Office

I am grateful for that intervention, and the club in my constituency that my hon. Friend mentions has a proud tradition in rugby league. He has put his finger on the problem: where does the rough and tumble of sport end and wilful harm and negligence begin? That is the crucial issue that we are discussing.

Under the Bill, there is the potential for confusion because people can define their own statement of risk. Two opposing teams could have different statements because they view the risks involved in their sport differently.

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

I know that we discussed this point earlier, but I have some difficulties with it. I understand my hon. Friend's point about everyone in a team signing up, but what would happen in a rugby game in which one team had signed a statement of inherent risk and the other had not? The referee would be trying to referee a game in which there were contradictory elements. Would it not be better for each national governing body to take responsibility so that people could buy into a whole scheme when they registered for a club? In the same way, when I sign up with my local rugby team at the beginning of the season, I buy into the whole process.

Photo of Andy Burnham Andy Burnham PPS (Rt Hon David Blunkett, Secretary of State), Home Office

I am grateful to my hon. Friend for raising that point, which I was coming to. He highlights a real problem with the Bill, because we may have different certificates or one team may be covered while the other is not. That would raise real issues about the legal status of each team.

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

There is a solution, as the hon. Member for Loughborough suggested. Just as all the national governing bodies are free to lay down the insurance requirements involved in tendering, they could lay down requirements for an agreed standard certificate of risk.

There is one additional point. Anyone who joins a club at the moment—my sons recently joined Whitstable rugby club and Whitstable yacht club—already signs a document. We are simply putting some legal force behind the kind of documents that people already sign.

Photo of Andy Burnham Andy Burnham PPS (Rt Hon David Blunkett, Secretary of State), Home Office

The hon. Gentleman is coming to the solution that I am going to propose. I have carefully considered the issue—indeed, I was thinking about it anyway—and we are coming to almost the same conclusion. Whether it can be made to work is a matter for the Minister, and perhaps she will advise us. However, there is an issue on which we could agree.

We must rope off the rough and tumble of sport from the lawyers. As I said, those who seek to generate claims have sought to get into that territory, but the issues that they raise are simply sporting issues. Those who contact ex-players and encourage them to make claims should not be venturing into that territory, because some things are just part of playing sport. As my right hon. Friend the Member for Holborn and St. Pancras said, we need to protect sport from such things, but we do not want to create a whole new raft of paperwork for clubs, which feel that they already have too much to deal with. Crucially, we do not want to leave people exposed when they take to a sports pitch; we want to ensure that they are adequately covered and that the statement to which they sign up does not give too much away.

I hope that I am being helpful to the hon. Member for Canterbury when I say that there is a simpler solution. Indeed, he just mentioned it, as did my hon. Friend the Member for Loughborough. The risks involved in each sport vary, and tennis is less dangerous than cricket, as far as I can see. It should therefore be for the governing body of each sport to define the risks inherent in it and to set them out in a clear statement to all potential participants.

Photo of Judy Mallaber Judy Mallaber Labour, Amber Valley

How would that principle apply to areas other than sport that are in the Bill's purview or which the promoter wants to include? Play has been mentioned many times, and there could be different statements in different play facilities throughout the country. The idea of talking about reckless disregard, to return to a previous point, fills me with some horror. How would my hon. Friend's principle apply to areas that have no sports governing body, such as all the other voluntary groups, some of which will have things in common, such as different playing facilities?

Photo of Andy Burnham Andy Burnham PPS (Rt Hon David Blunkett, Secretary of State), Home Office

My hon. Friend has put her finger on an important point, and I would not profess to say now that I have a full answer to it.

My experience is in sport, and I am looking principally at the governing bodies of sport and how they seek to regulate and protect the interests of those who play their sports. There is an issue about the broader scope of the Bill and the range of activities that go well beyond competitive sport. There are umbrella organisations and associations for voluntary activities, such as the Scout Association, and I can think of many others. If the proposed system is acceptable for sport, there is potential to read across.

I will not detain the Committee too long, but I want to develop the thinking. If each sport produced the agreed statement of inherent risks—cricket would be different from tennis, which would be different from football, which would be different from rugby—the statements would be incorporated into the registration forms referred to by the hon. Member for Canterbury, which each player signs at the start of a new season. I am a Football Association registered player, with a club that I play for locally; I am sure that the my hon. Friend the Member for Loughborough has signed forms that register him with the Rugby Football Union.

If the signing-on forms for all players incorporated the statement of risks and the acceptance of those risks, we would have a far less bureaucratic system. We would also not sign away too much, as that would leave those people not properly protected under a more ad hoc and hazardous system at grass-roots level. When anything happened in a game, it would then be for the courts to decide whether the instance in question went beyond the rough and tumble that one would expect to find as a player of that sport or whether it was a case such as that mentioned by my hon. Friend the Member for Chorley, in which the intent was to harm and to cause injury and what happened went beyond the playing of the game. In football, such a case might involve a reckless two-footed tackle, for instance, which is prohibited under the laws of the game. It would be for the court to make the judgment—as it would have to make the judgment that my hon. Friend referred to, concerning the reasonable risk taken on by a spectator—as to whether the action went beyond the risks normally involved in pursuing an activity and, if so, who would be liable for exposing that person to risk.

In the spirit of what my right hon. Friend the Member for Holborn and St. Pancras said, could the Minister take away the idea and think creatively about the correct point that the hon. Member for Canterbury is trying to address? Is there not a more simple, straightforward arrangement, which could be regulated top down by the governing bodies of sport? After all, they are the people who regulate what goes on in sport and we should empower them to control what goes on beneath them. Could we not agree that rather than creating a statement, the Bill could place a legal duty on governing bodies to define the risk that

their sport exposes people to? We could require them to sign all participants up to that standard, so that the participants knowingly sign up to the risk.

That would help governing bodies. They would not lose players who are frightened off by talk of great risk, but they would also be helped in their negotiations with the insurance industry. If they could show that the registration forms contained that statement and that all players had to sign up to it, and if there were no question of a player being not covered, which would include every footballer in the country from 40,000 football clubs—just think how many registered players there are—we would know that every single one of them had signed up to the principle of having accepted the inherent risk of their sport. The FA would be able to go to the insurance industry and secure better terms for its member clubs than it can secure under the current system.

I strongly support the discussions that we had in an earlier sitting about the Financial Services Authority looking flexibly and leniently at how sports pursue their insurance cover. The two go together: the British Amateur Rugby League Association handles cover for rugby league clubs, and if the governing bodies were to have that control, they would get better, cheaper insurance and we would have achieved the aim of the Bill, which is not to lose volunteers or people who play sport. There is a lot in what the hon. Member for Canterbury said, but there is a slightly simpler solution and I hope that the Minister will give it some consideration.

Photo of Fiona Mactaggart Fiona Mactaggart Parliamentary Under-Secretary (Home Office) 3:00 pm, 19th May 2004

That was a helpful contribution, because, in effect, we were seeking a version of my hon. Friend's suggestion in the earlier discussions with the hon. Member for Canterbury. That is why the Government did not get in the way of the Bill on Second Reading. We recognise that there is an issue and that is must be addressed. One of the probable reasons why the CCPR said in the letter from Margaret Talbot that it felt that this issue could be progressed through policy was because there might be ways other than legislation to achieve the end. My hon. Friend described one such way.

To some degree, the problem is to do with timing. We could try to develop practice in governing bodies that includes not only the kind of proposal that has been made, but collective insurance schemes, which we know help in other parts of the voluntary sector. We have a problem with insurers loading premiums, but they nevertheless help to drive down excessive premiums. We need to drill through those things as policy.

I hope that it will help the Committee if I say that, although we are resisting the Bill, we have not given up on examining other ways of trying to achieve those ends. That might include the kind of approach that the hon. Member for Canterbury suggested. We did not resist the Bill on Second Reading because we accepted that there is an issue to be addressed. Our concern is that the particular way of addressing it that we are

discussing permits negligence, although not reckless negligence. If his amendments were accepted, it would be a dangerous solution that would create alternative problems.

Before the Bill came before the Committee, we did not have time to get agreement across the voluntary sector about how we can find an alternative way of progressing these matters. I will have a meeting with my right hon. Friend the Minister for Sport and Tourism next month to discuss the FSA, and we will also discuss the proposal to which I referred. I gave that commitment to the Committee. We are not saying, ''Do not touch this issue with a barge pole'', because we want to fix it.

There is a specific issue about sport, which is probably slightly different and in some ways easier to manage than issues relating to some other adventurous activities. That is a further problem that we must address. In sports there are rules of the game and so on, so many things can create clarity about how one manages risk. In most games, the rules are about risk management to some degree. They are not all about that; they are mostly about how one wins, and who wins and loses. None the less, the question of who can be involved in a scrum and so on are classic risk management on the part of the rugby regulations. The idea of protecting the right to the rough and tumble of sport is one that the Government can be enthusiastic about. Does the Bill do that? I think that it does not.

The hon. Member for Canterbury suggested that the 1962 case gives us a test on reckless negligence. It is unlikely that the courts will follow a case that is that old. I tried to understand this matter, and being a non-lawyer, like most people in this Room, it was quite hard to do so. What is the difference between manifestly unreasonable and reckless negligence? What is the difference between negligence and reckless negligence? I asked for examples, because I can only think in examples. I was advised that if a leader leaves children doing gymnastics unsupervised for a couple of minutes while he puts the kettle on and a child falls and is injured, he will have been negligent, but probably not reckless. If he spends a long time away it will probably be reckless negligence.

As I said, if someone has been warned about safety equipment, the weather forecast or some other risk, it may add an element of recklessness. It is a problem that needs to be solved. When it comes to children, I think that we need to solve it through policy rather than by permitting negligence, which is what the Bill would do.

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

I welcome the contribution of my hon. Friend the Member for Leigh (Andy Burnham); his suggestion would help sports with national governing bodies whose rules are broadly followed by all their practitioners. It would not, however, cover the legions who play the non-competitive but challenging sports in which individuals and groups deliberately do exciting and risky things.

I hope that, roughly speaking, we can report the Bill as originally set out, but I would support the amendments proposed by the hon. Member for

Canterbury. Before Report, Government lawyers should try to come up with a formula that will incorporate in the Bill a sound proposal for dealing with major competitive sports that have national rules.

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

Before my right hon. Friend gets too enthusiastic about national rules, may I ask about those on a Sunday school outing to Scarborough who decide to play cricket? Would it count as cricket if they used a tennis ball?

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

As ever, my hon. Friend has put his finger on the point—and better that I was doing. Such children would not be covered by the national rules or laws of cricket; it would be a casual effort. As things stand at present, if one of them fell over something on the beach, I suspect that those who had organised the Sunday school trip would be frightened that mad lawyers, foaming at the mouth, would go running round to the parents trying to make money out of it. That is the world that we live in, and we need to protect people against that.

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

I accept what my right hon. Friend says, but I think that the difficulty can be addressed through national associations. I cannot imagine that, just before the children started playing, someone would rush around with a form saying that everyone needed to sign a statement of inherent risk. That is where the difficulty lies. At what point do we sign a statement of inherent risk? Would a Sunday school teacher have to plan the cricket game on the beach for later in the day?

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

It is not the Bill that will cause Sunday school teachers to wonder whether they need to protect themselves against lawyers. It is the present circumstances that make people bothered about it. The Bill is an attempt to address that problem.

We need to promote risk taking by young people. I remember, some years ago, that Nadia Comaneci, whose nationality I cannot remember—she may have been Czech, or perhaps Romanian or Hungarian—

Hon. Members:

Romanian.

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

Right; she was Romanian. Nadia Comaneci was a star gymnast. She was chosen to represent her country because she was taking the most alarming and breathtaking risks, but in a rough adventure playground littered with broken cars and other such things. It was that risk-taking element that made her name, and it was encouraged. Society is now deliberately discouraging risk taking; but we cannot afford to allow that to happen, as it will affect the mental and physical health of young people.

As Report is not for the best part of a month, I hope that we can get together and come up with a formula that would take up the point made by my hon. Friend the Member for Leigh. There is a great deal of good will on both sides, not least from the Minister, who has been working hard on this. Possibly we will have to stick to what we have done for the other activities; there are no national bodies for many risk-taking activities.

Photo of Lindsay Hoyle Lindsay Hoyle Labour, Chorley

There is a slight anomaly. The national office does not cover some of the rugby league teams when they play; I used to play rugby union sevens. Sometimes, national bodies will not cover the insurance, so safeguards have to be built in.

I hope that what is suggested will allow for that, and cover those national bodies that would not be covered under their constitutional rules, but would need special provision. The Minister could take that on board and come back at a future date to say how we could overcome the issues for those kinds of games as well.

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

My hon. Friend has put his finger on something. We live in an imperfect, strange world, in which things overlap and fall short. We need to make sure that whatever law we pass is fairly simple and straightforward and to encourage folks who are just trying to organise a bit of sport or something else to occupy young people who may otherwise not occupy themselves in a way that is beneficial to the rest of society or themselves.

Photo of Andy Burnham Andy Burnham PPS (Rt Hon David Blunkett, Secretary of State), Home Office

On the point raised by my hon. Friend the Member for Denton and Reddish, it would be unlikely for those young people to sign a certificate before going off to Scarborough, Whitby or wherever. That is the danger with the system.

We have the kind of society that my right hon. Friend the Member for Holborn and St. Pancras is rightly worried about. We are all panicking and filling in forms; one cannot do anything without signing something away. I have proposed to use the systems and structures that are already in place and that regulate all those activities.

Let us be honest: almost all such activities have a regulatory structure, either with a light touch or, with the main sports, a more heavy touch. That is a way of reaching them. A person does not want to be in the position of having bits of paper flying around when all they want to do is take a few kids for a kick around on the beach.

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

We are talking about what in old-fashioned times used to be described as competitive games. Nearly all competitive games have national bodies with national rules, and my hon. Friend's proposition would cope with them.

However, as I understand it, there are no national rules for rock climbing, caving, orienteering or other activities coming under the old-fashioned definition of sport or adventure activity. There may be some bodies; in some cases, confusingly, there will be several national bodies with a few rules about how one ought to go about things, but those rules do not apply as the rules for organised games do. We need to come up with something that would cover both the area for which my hon. Friend's proposals are apt and useful, and the other areas for which they are not.

My final point is that young people need to do things that excite them. The worst thing that a young person can say about anything we offer is that it is boring; that is the ultimate insult to grown-ups. If we de-risk things to such an extent that the reputable and organised

things are boring, young people will do risky things outside the system. That will be a hell of a lot more dangerous for them, and with the devil making work for idle hands, it will probably be a lot worse for the rest of us as well.

Photo of Julian Brazier Julian Brazier Shadow Minister (Foreign and Commonwealth Affairs) 3:15 pm, 19th May 2004

We have had a profitable debate. I was interested to hear what the hon. Member for Leigh said in his maiden contribution to the Committee. I should like to clarify one small issue before I come to his main point: in all cases—not just the one in Britain, in which the Court of Appeal is defining ''reckless disregard'', but a whole range of cases in America—one does not have to prove intent. I say that because the hon. Gentleman mentioned intent at one point. One can show reckless disregard without having any intent to cause harm. That is a higher standard than negligence, but it is not that high.

The hon. Gentleman's points about insurance are well taken. We withdrew clause 3; I hope that the Government will not allow the FSA to spoil that. We come back to a fundamental point that has been made time and again: at the end of the day, insurance premiums will reflect actual risk.

On the hon. Gentleman's central point, he was right that that is exactly how the organised sports end of the Bill will work. Bodies such as the RFU were in fact at the discussions during which we put the Bill together. When people join a rugby club, they will sign up to a standard statement that will have been settled by the relevant governing body.

There are two points to deal with. The first is that a whole range of people are not represented by governing bodies. The right hon. Member for Holborn and St. Pancras made that point so well that I will not repeat what he said. The second very important point affects the issues with which the hon. Member for Leigh is principally concerned, which is that if the system were adopted without the Bill, it would have almost no legal value whatever.

Photo of Andy Burnham Andy Burnham PPS (Rt Hon David Blunkett, Secretary of State), Home Office

I was not advocating dropping the Bill altogether; I was suggesting that clause 2, instead of creating statements of risk, should place a duty on governing bodies of sport to define risk, communicate that known risk to participants, and require participants to sign up to a statement of risk as part of the registration process at the start of every season. I am not saying that the scheme should become voluntary; I am saying that we should put it in law. That was the purpose of what I said. I proposed that rather than the system before us, in which one rugby club can seemingly define risk differently from the next. That is the problem with the Bill. It mentions a

''volunteer, employee . . . or volunteering body''.

That gives anyone the power to define their own statement.

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

I understand that point entirely, and we debated it at length in the consortium that put together the scheme. The point made was that although those at the organised end of sport can quickly sort the matter out for themselves, just as the RFU has sorted

out insurance arrangements, one has to have a certain standard insurance package. I am sorry to keep citing the RFU, but it was part of the process originally—I point that out for the benefit of the rugby league people. Just as one could set a standard insurance package, so there will be a standard statement. The problem that we would create if we required a governing body to provide the statement is that we would then leave everybody else out. Basically, the hon. Gentleman and I have exactly the same thing in mind, and the practical effects of our schemes would be the same.

I may have read too much into the hon. Gentleman's statement, but I want to emphasis that as things stand at the moment the courts are quite willing to ignore completely the views of governing bodies. The case that led Roy Amlot QC to become so involved in the issue involved not a volunteer but a professional mountaineering instructor, but I am concerned with the vast majority of rock-climbing, which is voluntary. In that case, a judge sitting in the comfort of his courtroom ruled that there had been negligence on the part of a mountaineering instructor in respect of an accident that happened on a mountain face, although there was no disagreement about the facts of the case. He simply disagreed with the man's judgment on a mountaineering issue, despite evidence from the relevant association. If that can happen, we must realise that we have to provide a statutory basis for such issues.

Photo of Andy Burnham Andy Burnham PPS (Rt Hon David Blunkett, Secretary of State), Home Office

Partly, I am asking why we should create a new piece of paper when there already is one for the governing body and the individual. If the duty was on the governing body to define risk and require participants to sign up to the statement mentioned in the Bill, the courts would have to give the governing body due regard as the sovereign body in that sport, because the Bill would have referred to governing bodies. I presume that it would also have to set out which is the recognised governing body in each sport, but I think that that is done in other legislation.

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

I could try to sidestep the point by saying that we have the problems of all the organisations that do not have specific governing bodies, but there is a more central point. Given the kind of court rulings that we have had, such as that unbelievable yachting case in which there was an absolute willingness by the court to ignore what anybody who has ever been involved in sailing understands, the legal advice that I have received is that we will not achieve anything without some effort to tell the court that we are restoring the bar for negligence to a higher level.

Photo of Judy Mallaber Judy Mallaber Labour, Amber Valley

While I am concerned about the reckless disregard amendment, I am having difficulty in deciding how to vote on the Minister's amendments. They put forward a different viewpoint from that taken on Second Reading. We also need to look at the proposals from the Joint Committee on Human Rights and some others that have been made. I wonder whether some of those issues might be better discussed as the Bill proceeds, because there is a lot of value in

what the Minister said about her concerns. However, we now seem to have got into a further range of discussions that makes it hard to come to a considered view on the direction that we are going in.

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

I am not sure that I entirely understand that point.

We are now at the heart of the Bill. We are introducing the option for sport, adventure training and other recreational and voluntary organisations, such as a dancing club, to produce this certificate if they want to do so. Nobody is forcing them to do it; if a certificate is not produced, one of the amendments in this group includes an explicit requirement on the court not to take that into account. It provides an extra weapon in the armoury, and one that organisations from the RFU to the NFU will be able to pick up in order to say to their members, ''Here is a standard format; this is what we suggest we get people to sign up to.''

Photo of Andy Burnham Andy Burnham PPS (Rt Hon David Blunkett, Secretary of State), Home Office

The system that the hon. Gentleman has described does not have much weight because it is so voluntary. Would it not be better to have not the bottom-up approach that he is suggesting, but a more top-down approach so that we know that every player of a particular sport is covered in exactly the same way and they all take on the same risks? That would be better than if there were a haphazard and confusing arrangement.

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

The organisation of the sports must come back to the governing bodies. They will be able to do that within the framework of the Bill. It is as simple as that; they will be able to do it, just as is done for insurance now, and this is a much less bureaucratic and burdensome business than sorting out insurance policies.

I urge the Committee to reject amendment No. 49—I think that the Minister intends not to press amendment No. 51—and to support amendments Nos. 7 and 8.

Question put, That the amendment be made:—

The Committee divided: Ayes 3, Noes 6.

Division number 8 Adults Abused in Childhood — Clause 2 - Statements of Inherent Risk

Aye: 3 MPs

No: 6 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

Amendments made: No. 50, in clause 2, page 2, line 49, leave out from 'and' to 'in' in line 1 on page 3 and insert

'the Statement has been duly signed in accordance with subsection (3A),'.

No. 52, in clause 2, page 3, line 3, leave out

'the employee's voluntary organisation or volunteering body,'

and insert

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

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

'the volunteer has shown a reckless disregard for safety.'.—[Mr. Brazier.]

Question put, That the amendment be made:—

The Committee divided: Ayes 6, Noes 4.

Division number 9 Adults Abused in Childhood — Clause 2 - Statements of Inherent Risk

Aye: 6 MPs

No: 4 MPs

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Nos: A-Z by last name

Amendment proposed: 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.'.—[Mr. Brazier.]

Question put, That the amendment be made:—

The Committee divided: Ayes 7, Noes 3.

Division number 10 Adults Abused in Childhood — Clause 2 - Statements of Inherent Risk

Aye: 7 MPs

No: 3 MPs

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Photo of Fiona Mactaggart Fiona Mactaggart Parliamentary Under-Secretary (Home Office) 3:15 pm, 19th May 2004

I beg to move amendment No. 56, in clause 2, page 3, line 13, leave out subsection (5).

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

With this it will be convenient to discuss the following amendments: No. 57, in clause 2, page 3, line 16, leave out subsection (6).

No. 58, in clause 2, page 3, line 19, leave out subsection (7).

Photo of Fiona Mactaggart Fiona Mactaggart Parliamentary Under-Secretary (Home Office) 3:30 pm, 19th May 2004

The amendments deal with the provision of training courses about volunteering for members of the judiciary. Although I have joined hon. Members in criticising the lawyering class, the Government are not persuaded that a statutory programme of specialist training for members of the judiciary is required or justified. As I have pointed out,

the judiciary in its most recent cases and at the most senior level has made it clear that it accepts and understands the concept of inherent risk. Under current law, there is already a defence of volenti non fit injuria—the voluntary assumption of risk. We have discussed that a lot. It is well recognised that that defence can be relied on in cases involving dangerous activities, such as sports. Judges are also expected to take into account any contributory negligence, as has happened in many of the cases.

One difficulty in discussing such cases is that many do not go to court. However, I found a 1995 case of a Girl Guide and spitting sausages. Contrary to the hon. Member for Canterbury, the claim made on her behalf did not succeed, even though it was recognised that sausages do spit. We need to look at what really happens when things get to court, rather than what people do when they bring a claim. Hon. Members have rightly sought to take action to diminish the number of claims. The Government are enthusiastic about that. I have mentioned various reviews and studies that we are trying to put in place to reduce the number of claims. That is the best way to deal with the problem.

How do we train judges? The Judicial Studies Board is an independent body funded by the Department for Constitutional Affairs, and it is in charge of training. Although it is not set out by statute, the board is responsible for such matters. It decides on training requirements and delivers that training to judges. The board's objectives include the provision of high-quality training to full and part-time judges in the exercise of their jurisdiction in civil, criminal and family law, advising the Government on the training requirements of judges, if proposed changes to the law, procedure or court organisation are to be effective, and providing and advising on the content of such training. A memorandum of understanding between the Department for Constitutional Affairs and the Judicial Studies Board sets out how the board will operate its business and how its relationship with the Lord Chancellor and Parliament will be conducted.

That is why the Government are pressing this group of amendments. The proposed regulations would add nothing that the board's remit does not already cover. Its job is to decide on the overall balance of courses and to ensure that it protects judicial impartiality. It would be disproportionate and inappropriate to require the Secretary of State to prescribe specific training by way of regulations in this area—or, for that matter, in any such area. That would raise the issue of the relationship between the Government and the judiciary. It is being proposed that Sport England, the Central Council of Physical Recreation or other such bodies as the Secretary of State sees fit may establish training courses under subsection (5).

The JSB believes that that task is its job, that it has the resources to provide judicial training and that it has the administrative expertise to do so in a legal way. The JSB invites outside speakers to attend its events. When I was the chairman of the all-party group of

which the hon. Member for Canterbury was vice-chairman, we tried to feed people into judicial studies training who had first-hand experience of dealing with people with learning disabilities who had been abused.

There was some engagement in the training of people with experience of working with people with disabilities, although not perhaps in quite the detail that we had wanted. Nevertheless, it is clear from our experience of that group that the JSB is willing to invite appropriately experienced people to contribute to its training courses. The overall balance of its courses is rigorously maintained by the course directorate and it is important that the independence of the judiciary and its separation from Parliament is regarded as one of the valuable aspects of our constitution.

The proposal under the Bill to mandate the provision of the training of judges by such bodies will be a break with the long-standing and acceptable method of delivering their training, which is designed to protect judicial impartiality. There is an obvious problem, for example, of creating a perception of bias. Let us suppose that a judge heard a case that had been brought against an organisation that was funded and trained by Sport England. Not only would that undermine potential confidence in the judiciary, but it could lead to further litigation, a problem that we are trying to avoid.

I have worries about the principle of the proposal, although I know that its motives are good. If the Bill were enacted, I hope that the JSB might consider our discussions and make the decisions. There could be practical problems with how that could be done, how it will be funded and how will it deal with the practical problems of providing courses and selecting judges for training. Clearly, such decisions will have to be made by the JSB. The structure of the proposal has problems.

I suggest that the training that the JSB might wish to mount under the Bill forms part of a larger event. Stand-alone courses could be extremely expensive because of the additional costs of travel, judge release and so on. For reasons of principle, practicality and cost, we suggest that clause 2(6) is at best unnecessary and that it could be harmful.

Under clause 2(7), the Lord Chancellor shall

''lay a report before each House of Parliament setting out'' the training courses provided and the number of judges who attended them. I assure the Committee that the JSB is already required under its memorandum of understanding to publish by 30 June each year a report to the Lord Chancellor on its activities and place copies of it in the Library of both Houses of Parliament. The report sets out the number of judges who attended the courses and the topics that were covered in each course. Given that the requirement is already covered, clause 2(7) is unnecessary. The Government believe that subsections (5), (6) and (7) are disproportionate, which is why our amendments would delete them.

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

I recommend that the Committee accepts the Government's amendments. However, I do so with a heavy heart. I have been truly shocked by some of the cases that have been unearthed during our

proceedings. Incidentally, the case of the Girl Guides is different in that £5,000 was paid to the parents—this is the case about which I was notified—but it was a disguised case, so unlike most of the cases to which I have referred, I cannot give chapter and verse about it.

The judiciary has suffered severe problems. I am willing to accept the Minister's amendments without further ado for two brief reasons, one of which is positive, the other negative. On the positive side, unlike the half of the Bill about which we disagreed over whether the judiciary could be tackled by non-legislative means, there is to some extent a non-legislative route whereby the problems could be sorted out. The Minister and I had a happy experience, which she has described accurately. When we establish the all-party group on adventure training and recreation, which I hope that all members of the Committee will join, we can get the JSB to talk to it. That is the positive reason.

The negative reason could be stated much more succinctly. I am assured that if the subsection were to remain in the Bill, it would not have the smallest chance of getting through another place, because every Law Lord would be there to oppose it.

Amendment agreed to.

Amendments made: No. 57, in clause 2, page 3, line 16, leave out subsection (6).

No. 58, in clause 2, page 3, line 19, leave out subsection (7).

No. 59, in clause 2, page 3, line 25, at end insert—

'( ) In this section ''guardian'' means a guardian of a child within the meaning of the Children Act 1989 and includes a special guardian within the meaning of that Act.'.—[Fiona Mactaggart.]

Question put, That the clause, as amended, stand part of the Bill:—

The Committee divided: Ayes 8, Noes 3.

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No: 3 MPs

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Clause 2, as amended, ordered to stand part of the Bill.

Clause 6 disagreed to.

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

On a point of order, Mr. Amess. There are many confused faces. Clause 6 would have been necessary only had we kept provisions that we agreed to remove. There is no money involved in the rest of the Bill.

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

Order. That was a very helpful point of order.Clause 7 Short title, commencement and effect