Dr Justin Davis Smith gave evidence

Q 13

We will now hear from Dr Justin Davis Smith CBE. For this session we have until 1pm. Will the witness please introduce himself for the record?

Dr Davis Smith: My name is Dr Justin Davis Smith and I am Executive Director for Volunteering at the National Council for Voluntary Organisations.

Q 14

Thank you for joining us today. We had the advantage of a short briefing about the Bill from you on Second Reading. I do not want to paraphrase your views—I would like to hear them in your own words—but you quoted the only survey I have seen  quoted, from 2007. I think it was a sub-set of an original survey done in 2005. A pool of people talked about volunteering and their reasons for doing so. One finding was that only 1% of volunteers who had stopped volunteering said they had done so because of concern that they would open themselves to litigation.

I do not know if you have had the benefit of seeing the survey done last month by St John Ambulance. That shows that twice as many people will not intervene in difficult situations because they fear that their own skills in first aid are not up to it. They are worried about the consequences. Could you give your view now as to what you think the major barriers are to volunteering and interventions of that kind and what the best ways to improve those levels are? I think volunteering has actually gone up recently, but what do you think are the best ways of improving that and do you think legislation such as this is the best way to do that?

Dr Davis Smith: I would draw a slightly different conclusion from you from that 1% figure and I will say why in a moment. Our starting point at the National Council for Voluntary Organisations is that volunteering is a good thing and we need to find ways of engaging even more of our community in volunteering and social action. For us, therefore, the issue at stake is two-fold. First, is there any evidence that people who might otherwise volunteer are deterred from volunteering because of a risk or perception that they might be sued should something go wrong? Secondly, if there is an issue, is this Bill likely to go some way towards reassuring them? I think, and my organisation thinks, that on both counts there is enough evidence—tentative perhaps—to say that this is worth doing to address that issue.

You are right to draw attention to the 2007 “Helping Out” survey, where you referred to the 1% of people who had stopped volunteering, citing the reason that they risked being sued. For me, the more important figure in that survey was the 47% of people who do not volunteer and, when asked why, said that it was the risk, fear or perception that they might be sued or litigated against.

Our conclusion from that is that there is a real concern stopping a significant proportion of people getting involved, but it is largely perception. All the evidence that I have seen would suggest that we are not in the grip of a compensation culture, but nevertheless people perceive there to be one. I think that perception, that myth, that fear is just as big a deterrent as if there were the reality of a compensation culture. That figure of 47% in 2007 suggests that that is the case. In fact, the 1%, who had volunteered and then given up and cited that as a reason, adds weight to the fact that it is mainly perception rather than reality. Once they are engaged in volunteering, perhaps they realise that it is not as big a barrier as they thought originally.

If we come on then to the St John Ambulance survey that has just been reported, it helpfully adds weight to that position that we spelt out in the briefing note that you referred to. You are right to say that fear of being litigated against was not the main reason given by the 2,000 or so people interviewed for why they did not get involved in first aid—and it is worth saying that that is the very specific form of volunteering that St John was looking at. The main deterrent, as you say, was the fact that people did not feel that they had the right training  to get involved. But that survey nevertheless suggests that 34% of adults who would not intervene in a first aid setting say the reason was that they feared legal repercussions.

If you look at young people—I know there is a lot of interest in Parliament and in the Government about engaging more young people in social action—that figure goes up to 38%. I think there is significant evidence from 2007 which is backed up by the recent St John Ambulance study.

Q 15

Just to press my second point, if you are right that it is a perception rather than a reality, some might think that is because the Government and insurance companies keep telling us that that is true. What is the best way of addressing that? One of the Conservative MPs who spoke on Second Reading asked whether we are expecting this Bill to be nailed up in every public place so that people will read it. Do you not think that education, or training of the kind suggested by St John Ambulance, would be better ways of putting that compensation culture myth to rest, rather than effectively adding to it by enacting a piece of legislation that probably no one will ever read?

Dr Davis Smith: There is no one way and I am certainly not suggesting that this is the only way, or even necessarily the best way in isolation. St John Ambulance talks quite rightly about the importance of training in first aid to raise people’s confidence about being prepared to get involved, with which we wholeheartedly agree. It does not, however, seem to me unhelpful for a Bill to come before Parliament that, as I understand it, does not seek to change the law but that is basically about sending a message from Parliament to courts about the importance of responsible social action; about accepting the fact that sometimes accidents can happen; and about reassuring would-be volunteers that those factors will be taken into account, should something go wrong. Should the Bill become an Act, we would certainly be very happy to help promulgate some of those views through our 11,000-strong membership to try to get this view better embedded in the voluntary and charity sector.

There is no one answer. To answer your question, training is important, but the Bill is not unhelpful and it could be helpful alongside a package of other measures.

Q 16

I do not know whether you accept the legal connotations of the Bill, which are that it will not change the substantive law: it will send out signals rather than anything else. I take it that you are familiar with section 1 of the Compensation Act 2006, which says that courts should consider whether their determinations may

“prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way…or discourage persons from undertaking functions in connection with a desirable activity.”

Your survey, I think, took place after the passage of that Act, but perhaps before it had taken effect. How do you now see the Bill—certainly Clause 2 of it—differing from what is in that Act?

Dr Davis Smith: I am not a lawyer, so I could not give you chapter and verse about how it differs. My understanding is that it is trying to address a similar issue, but not in exactly the same way. The findings we  both referred to from the St John Ambulance survey suggest that the 2006 Act has not been completely successful in terms of reversing this myth and, therefore, we would argue that additional action is required, such as legislation alongside training to address the fact that 38% of young people say they are put off volunteering in those sorts of settings. We would argue that that is a big social problem.

Q 17

Is not one of the problems with surveys such as yours and St John Ambulance’s that, if you offer people a range of choices, you are saying not, “What are your problems?” but, “Do you think this is an issue or that is an issue?” You are suggesting those matters to them.

I have one final point. A possible reason why the Compensation Act has not registered with the public consciousness is because it is rather dry legislation, like this. I go back to my point that perhaps better ways can be found to educate the public. However, the 2006 Act is specific about saying that it wishes people to engage in desirable activities. This Bill implies that if you are negligent in the process of conducting a socially useful activity, the judge may take that into consideration in deciding whether you have been negligent. Do you think there is a risk that that will put off people from taking part in activities, because they might think that if something goes wrong, they will not be able to sue?

Dr Davis Smith: On the question about the methodology underpinning the research, I would agree. If you prompt people to respond, you get a different answer than if you ask open-ended questions. Nevertheless, I think the weight of the evidence suggests that it is not simply a result of the way in which the questions were asked, and they seem to be reasonably consistent over time.

On your second question, I come back to what I said earlier. My understanding is that the Bill is not about substantively changing the law; it is more about giving a message from Parliament to the courts about the importance of volunteering in our society and the importance of social action. I would accept, as I think I already have done, that legislation alone cannot crack this problem. If the 2006 Act has not been as successful as we wanted it to be—I do not know—perhaps the reason is the lack of dissemination and working with and through voluntary organisations to try and get those messages out to the coal face. I like to think that if this Bill goes through Parliament, there will be a more concerted effort to try and engage the community groups and the charity sector to help embed this within the culture of our society.

Q 18

With respect, my point was not about the law, but about perception. Imagine I am a parent thinking about sending my son to a scout camp. If I am sending him somewhere that is run enthusiastically by volunteers, I might think that if something goes wrong I will not have the same rights to sue, even if a serious injury takes place.

Dr Davis Smith: I do not think so. I think the voluntary and charitable sector takes its health and safety responsibilities hugely seriously. The old suggestion that volunteering somehow equals amateurish is really not a view of the modern charitable sector that we cherish and value so much in this society. I really do not think that that is true at all.

Q 19

Sorry, but you are missing my point. It is not about the competence; it is the fact that the child may not be sent in the first place, because the parent has read in the paper that if something is being done for charitable or socially good motives, there may be less responsibility or the standard of care may be lower or there may not be a right to sue. They might be wrongly thinking that, perhaps, given what you have said about the Bill, but thinking that nevertheless.

Dr Davis Smith: With due respect—perhaps I was not being as articulate as I could be—I did understand the question, and my response was that I think that most people now who might send children on the outward-bound type or volunteering activity that you referred to have a much deeper and better understanding of the nature of charitable activity and the importance that charities place on health and safety issues. We work really hard with our members to help them think through their responsibilities and their duties of care. There is a lot of attention now within the voluntary and charitable sector on risk assessment and making sure that activities for children or other vulnerable people or other clients are as safe as possible. The reality of course is that in any setting, however much you plan or prepare for any eventuality, sometimes things will go wrong. Our concern is that if we do not get a better balance in our society between proper risk protection and accepting that sometimes, with the best possible preparation, things will go wrong, we will end up living in a society in which people will not be prepared to put themselves forward in sufficient numbers to do all the valuable work that they currently do in their community. I think that people’s perception of how seriously charities take their duty of care is much higher than perhaps you are suggesting.

Q 20

I want to carry on discussing one of those points. First, will you confirm with a yes or no answer that those who are willing to play a greater role in wider society through the voluntary sector need signals to encourage them to get involved and need to know that the law is there to protect them? I think that the Bill goes some way towards doing that.

Secondly, very early on in the passage of the Bill we should stamp on the suggestion that organisations, charities and volunteer groups will behave in a more cavalier or gung-ho fashion because of the Bill—we should not allow that message to gain traction. We must not suggest, for example, that the Bill will undermine the safety of children at a scout camp. I want you to say as forcefully as you can that the Bill will have not a damaging effect on the voluntary sector but a positive one.

Dr Davis Smith: I wholeheartedly agree with your first point. Parliament has a hugely important role in sending out messages about what is valued in society, and I think that sending out the message that volunteering and community and social action has a hugely beneficial role to play in society—recognising that there are barriers and difficulties that must be addressed—is a really important function that Parliament can play. Even the process of having discussions such as this and getting the debates out as part of the passage of legislation is helpful in raising awareness in society more broadly.

On whether the Bill could inadvertently send out a negative message and enforce or encourage bad behaviour, I would say two things. First, I would repeat what I said  in my answer to the previous question: all the evidence I see from our very broad membership base at NCVO is that charities and voluntary organisations take their duty of care hugely seriously. Any suggestion that somehow they are looking for opportunities or that they might be tempted not to take their responsibilities hugely seriously would be doing our great charitable and voluntary sector a disservice.

If I may elaborate a little more on that issue, we have a second concern that, in addition to the possible negative effect that some of this myth might have on individual action, we hear evidence from some of our members—anecdotal evidence, perhaps—that organisations are tempted to close down and stop some of the most valuable and risky activities because they themselves fear that they will be sued should something go wrong.

If I may, I would like to give an example from our membership. We asked around our members in advance of coming up with our position on the Bill and my coming before you today, and one local volunteer centre got back to us with an interesting story. The centre has been running a volunteer transport scheme for many years. Twenty-five volunteers help to take people to hospital or to the doctors—mainly older people who would not be able to get there through lack of public transport or because they do not have access to private transport. Last year, one volunteer was helping someone into their car after a hospital appointment and the person slipped and broke their leg. The organisation is now dealing with a claim for negligence, which is causing real consternation to that organisation and, I am sure, to the individual volunteer.

The organisation is currently thinking through what it needs to do and the effect that the claim will have on its service. One likely effect that it has mentioned to us is that the cost of offering that service to clients will have to go up because it now has to spend a lot more time on paperwork and on dealing with the scheme. None of that was a suggestion from this organisation that they should be cavalier or that they should not take seriously the concerns and the health and safety of those vulnerable clients; they were merely reflecting back to us that it is not impossible that those sorts of schemes might be closed down in the future if the wrong sort of message gets out. Even with the best planning and training, accidents can sometimes happen.

Q 21

All of us on the Committee recognise the NCVO's huge contribution and your experience of working with voluntary organisations. Thanks for all that you do.

Can you just remind us of the scale of the organisations that you represent? As I go about my activities in my Macclesfield Constituency, it is not only St John Ambulance that has issues with trying to attract people into the organisation to work with youngsters. There is a queue of youngsters who want to get involved, and I understand that there are specific concerns about first aiders. When I speak to scouts, guides and others, it is a similar situation. There are more youngsters who want to get involved with these organisations than we have volunteers able to support them. Could you help by giving us a better sense of the scale of the challenge, given the size of your organisation? That would be incredibly helpful. Also, could you let us know how you sought to engage with your members to get their thoughts about the Bill?

Dr Davis Smith: Thank you for your nice comments about the NCVO and our work. We are a membership organisation, and we have 11,000 members of all sizes, representing the diversity within our society. Some are very big, involving tens of thousands or hundreds of thousands of volunteers, such as the National Trust, St John Ambulance and some of the big, household-name charities. However, we also look to offer a service to smaller charities, and we offer a free membership service. Some 7,000 of our 11,000 members have free membership, which means that they have a turnover of less than £30,000, so we believe that we represent a great diversity of voluntary and community activity, from the very large, household-name charities to the small community groups, many, if not most, of which are run entirely by volunteers without any paid staff.

This perhaps begins to address your third question about how we sought to engage our members on the Bill. We sent a survey out to our members asking about the scale of the issue, and the example of the transport scheme came back from a local volunteer centre. We had a response from about 500 members, which is not bad for a quick temperature take of the situation. We are the first to say that we do not want to over-dramatise the scale of the situation, which would be a disservice, but nevertheless the survey mirrors some of the larger national surveys. Indeed, a routine part of our work is that we take inquiries on a day-to-day level from our volunteers, who ring up because they are concerned about these sorts of issues. As I said earlier, we believe that there is enough of an issue here to think that it is worth while trying to shift this myth, or this perception, yet again.

One of the interesting issues in relation to size is that in the quick survey of our members we asked whether they feel that they are able to handle the risk associated with litigation issues that might be brought against their volunteers, and 16% of the 500 members that responded said that they do not feel very confident in managing that risk, but a further 27% said that they feel only a little bit confident. There is a risk management concern among some of our members, but the interesting thing was that, the smaller the organisation is, the more the level of concern goes up. That is not surprising because some of the large, household-name charities have their own in-house legal teams or access to legal services. It is often the small community groups, which are sometimes run entirely by volunteers, that are doing some of the most challenging, potentially risky but certainly most worthwhile activity in our communities, and they are perhaps most challenged by some of the issues that have been raised.

Q 22

Based on the response that you have had and your experience—notwithstanding that there is a broader requirement not just in legal terms but on education—is your feeling that a legal response, as part of that mix, would be helpful?

Dr Davis Smith: Yes.

If there are no further questions, I thank the witness for his evidence. That concludes our business for this sitting.

Ordered, That further consideration be now adjourned. —(Mr Wallace.)

Adjourned till this day at Two o’clock.