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Mr. Brazier: I am grateful to the hon. Gentleman for his courtesy in giving way, and I agree with many of the points that he has just made. Private Members' Bills, of course, cannot address issues such as funding. Perhaps he will acknowledge two points. First, in both the surveys that he mentioned, from Sport England and CCPR, the threat of litigation and the blame culture were listed first among the various factors. Secondly, the context has changed because of events in the past two or three years, particularly the Vowles case, which staggered the whole sporting world, especially rugby.
Mr. Love: On the hon. Gentleman's first point, yes, those factors were listed first, but other reasons were outlined in the reports, and it was suggested that they were more important. On the second point, I accept entirely the concerns raised by the hon. Gentleman. When I suggest that those are not the main difficulties faced by the voluntary movement, I am not suggesting that the Bill does not have merit. As the hon. Gentleman observed, as a private Member's Bill, it is a relatively modest measure, which I should like to combine with other suggestions to create a whole. Although I argue that those are not the major concerns, I would not wish to give the impression that they are not relevant.
Concern about increasing obesity has become a real political issue in recent years, for obvious reasons. Obesity in society generally has increased, but it has increased alarmingly among children. Over the past 10 years, in the youngest age group—children aged two to four years—the number who are clinically obese has almost doubled from 5 per cent. to 9 per cent. In the older age group—six to 15—the percentage has more than trebled, from 5 per cent. to 16 per cent.
Obesity relates to two sets of factors, the first of which is nutritional issues, such as whether McDonald's and other fast food outlets are responsible for some difficulties; we have discussed the content of the soft drinks to which children are so partial.
The second issue is physical activity. That is already relatively well developed for children, and changes that will increase physical activity are taking place in our school environment and in the general environment for children. The question is not whether volunteering will have an impact on the level of children's physical
activity—of course it will, if they take up football, rugby or any other voluntary sports activities. The question is whether such sports are an essential part of children's physical activity.The Bill strikes home and raises a problem of genuine concern in relation to the numerous tragedies that have occurred on children's trips in various parts of Britain and abroad. I cite just two instances: the canoeing trip in 1993 on which four children died in the west country, and the 11-year-old who drowned in France in 2001. Those cases aroused widespread public concern about whether the voluntary activity was responsible, and how such tragedies can be prevented in future. The Bill suggests that providing greater protection from litigation in certain circumstances would make a considerable difference. However, the Government have already taken action in that regard.
Government guidance relating specifically to school trips, which is where the major problem lies, was revised following a number of fatal accidents on such trips, and was issued in 1998 as advice on health and safety of pupils on educational visits. Further guidance on health and safety responsibility and powers was sent to all schools and local education authorities in December 2001. There are three supplementary good practice guides and a leaflet entitled "Group Safety at Water Margins", which is also available on the website. The Department for Education and Skills, local education authorities and others have been involved in ensuring that proper safeguards are in place on school trips.
However, that does not negate the anxieties. Many teachers have withdrawn from such activity because of those concerns, and many parents have withdrawn their children from voluntary activity. As has been mentioned, one of the teachers' trade unions recommends that its members do not involve themselves in such activity. If nothing else, I hope the Bill will highlight the need for further action.
That union mentioned the compensation culture, and others have spoken about that today. Although I accept that concerns exist, I should like to examine more closely whether such a culture exists in the terms described in the debate. We all know that class actions are undertaken, that solicitors and legal practices are allowed to advertise, and that no-win, no-fee work has been introduced. The real change that has taken place, however, is in attitudes. People now believe that they have a right to claim. As a result, costs have increased. The Institute of Actuaries has indicated that the costs of litigation will increase by about 15 per cent. this year, and they will continue to rise significantly in future years. However, the question is whether the fact that people now have a right to claim is necessarily not a good thing.
Mr. Burnett: I hope that the hon. Gentleman has not forgotten that a number of either completely unregulated or little-regulated personal injury claims companies are constantly touting for business and trying to win the sponsorship of as many claimants as possible.
Mr. Love: I shall come to that point. I accept what the hon. Gentleman says and I would be sympathetic to seeing the House bring such activity under proper scrutiny and regulation.
The Law Society has already suggested that there has been no change in the law relating to frivolous claims. The question whether there has been a change in the law in terms of the decisions taken by courts is a different matter, but there has certainly been no easing of the law in terms of the ability of a frivolous claim to succeed in court. The Law Society also says that the number of claims has gone down. As has already been indicated, after the bubble that was created when the no-win, no-fee approach was established, the number of solicitors practising in personal injury has fallen. Indeed, the Law Society confidently states that the number of claims being made has not increased.
In line with the comments of the hon. Member for Torridge and West Devon (Mr. Burnett), the Law Society also says that there is concern about unregulated claims advisers who cold call customers and put them under considerable pressure to take up their offers. I think that that issue needs to be carefully considered.
Mr. Burnett: I hope that the hon. Gentleman will not lose sight of the fact that this is not only a matter of the claims that are pursued. As the hon. Member for Canterbury (Mr. Brazier) said, some claims are settled without proceedings, which cost an enormous amount.
Mr. Love: I accept that that occurs, and I think that it creates a climate among the public. I accept the criticisms, but the only point that I was trying to make is that, in the balance of things, there are positive aspects in terms of giving people the right to make a claim. I do not think that that is an entirely negative phenomenon in today's society. We must all admit that, in the past, people who were justified in going to law did not do so simply because they thought that the right was not available to them. It must be a good thing if people believe that that right should exist, and it should be enshrined in the law to give them recompense where something has happened that should not have happened.
I should like now to look at the terms of the Bill and one or two of its possible shortcomings. A number of hon. Members have referred to the statements of inherent risks, which I think are an important consideration. Such statements will be in written form and will set out the risks involved in whatever form of activity they relate to, and they will talk about injury, harm and risks to property. I am glad that the hon. Member for Canterbury has cleared up the fact that the statement must be a written one. As I understand it—I am taking this at second hand—the Bill currently contains no provision to ensure that it is a written statement, but I think that we all accept that such a provision will be introduced in Committee.
I am a little less clear about the intention of the statement. I am told that it is an effort to share responsibility and to assume that team working will take place on safety issues in respect of any volunteering activity. That will include, where necessary, parents ensuring that their children understand the framework in which the volunteering will take place, and they will obey all the rules set out in the framework and the statement of inherent risks. None the less, I think that there is still some concern that we need greater clarity to avoid the sort of litigation that nobody wants to see arising as people try to tighten up exactly where the
limitations on the activity are in the statement and whether they are set out absolutely clearly, along with the risks of injury or to property that are inherent in that activity.There is also some ambiguity about whether the statement has to be signed on every occasion when an activity takes place. Would it have to be signed whenever somebody goes canoeing or plays in a football match? Should it be signed once on joining a football club, or on every single occasion when the activity occurs? That needs to be cleared up in Committee.
As I understand it, the statement would also ask the court to regard as "accidents" incidents that occur without negligence. There is some concern about the definition of accidents and of "without negligence". I know that it is extremely difficult to include in the statement all the risks that are likely to arise. Indeed, I understand that the statement will be illustrative rather than exhaustive. I accept that that must be the case, as there would otherwise be pages and pages of bureaucracy about all the other concerns that might come into play, which would create problems. However, that leaves some ambiguity. When a court has to make a judgment, it will find it difficult to do so if the statement is not comprehensive.
I also understand that the court will have to uphold the claim only where it is "manifestly unreasonable"—I think that those are the words in the Bill—not to do so. I understand that we are trying to raise the hurdle for a successful claim above its current level in civil procedure to something closer to what it would be under criminal procedure. I accept the principle of what the hon. Member for Canterbury is trying to do, but speaking with the voice of one of my legal friends—I know that other lawyers are present in the Chamber—let me say that there are concerns about what the word "manifestly" will mean and about whether some form of guidance will be given about the burden of proof needed to show that something is manifestly unreasonable.
That brings me to the essential non-legal point: what is reasonable to one person may be unreasonable to another; it depends on where people are coming from in relation to the case. A decision to ask a child to undertake an activity that could seem reasonable to a volunteer might appear unreasonable either to the child or to their parents—indeed, there have been many such cases. That gets to the nub of the concerns about reasonable behaviour. The Bill is not specific about the circumstances that are needed to relieve somebody of liability. We need greater clarity in the wording of the statement and the Bill itself, and I suspect that we probably need some form of guidance in order to achieve that. That is a major task but, unless it is addressed, lawyers in particular will worry that they have been left without an adequate framework within which to make such difficult decisions.
The essential point is that the Bill will shift the balance in favour of what the court might consider to be the negligent party and leave the victim with fewer rights. I am not a lawyer, but I question that. I accept that some cases are decided in a way that does not accord with what an ordinary person would believe to be common sense. However, where something that is manifestly unreasonable has happened, the victim should have
recourse to the courts. If we erect a barrier to prevent volunteering, the victim's ability to obtain justice will be affected. There will have to be much more discussion in Committee about where to strike the balance, because it is vital to get it right.
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