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Lawrie Quinn: I understand that if new clause 6 is not accepted, the Bill will allow a higher test of liability when providers have used a statement of inherent risk. The hon. Member for Canterbury (Mr. Brazier) has tabled amendments consequent on new clause 29. If new clause 29 were accepted, would not new clause 6 be unnecessary?

Mr. Dismore: The difficulty lies in new clause 29(1). If it had made the specification that I mentioned earlier, new clause 6 might not have been required; but we need to consider the test being applied, and we need to provide an opportunity to overcome the defence that might be advanced under new clause 29 by
 
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demonstrating, with the help of expert evidence, that what is being said is not correct. Expert evidence can be very helpful in cases of sporting or outward-bound injuries. When I was practising, I dealt with cases in which such evidence had to be used—one involved horses, another motocross—to explain what was right and what was wrong, and what constituted a test.

If new clause 29 is passed new clause 6 will of course become otiose, as clause 2(6) of the Bill will be deleted if the hon. Member for Canterbury gets his way with his new clause and one of his amendments. But the argument remains valid, even if new clause 6 has to fall because new clause 29 goes through. As has been said, these matters should be argued through in Committee, given the many faults that have come to light.

Lawrie Quinn: Assuming that I have understood my hon. Friend's argument correctly, if there were a failure to maintain, or to use in accordance with the manufacturer's instructions, equipment used in the activity in question, the need for an expert review of the   consequences of that failure would be paramount.

Mr. Dismore: My hon. Friend is right, and he has identified the issue in a nutshell. We need to consider the technicalities of what is or is not suitable for the purpose in question; indeed, I have some amendments that deal with that issue in a little more detail. So there are problems that could be addressed by new clause 6, but I assume that the hon. Member for Canterbury will resist it.

New clause 7 is extremely important. The normal presumption and basic legal maxim is that people are expected to know the law, and that if they fall foul of it that is their problem. However, potentially the Bill will strip people of their rights, and notwithstanding the question of clause 2(3), the principle still holds: it is extremely important to ensure that if people's legal rights are being removed, they are aware of that fact before engaging in activities in respect of which such rights are being excluded.

We cannot rely on the organisations themselves in that regard; if we do, there will be the paper chase to which I referred earlier. If the provision goes through in the existing or a similar form and new clause 7 is not accepted, the Secretary of State will have to ensure that the terms of it are widely known. I am afraid that, as a consequence, the Bill might have the counter-intuitive effect of discouraging people from engaging in such activities. But if we are to take away these important legal rights, action will inevitably have to be taken to ensure that the public know what is happening.

I turn to new clause 11. Under the Bill as it stands—that is what we must consider, because no amendment to it has so far been approved—it is effectively a defence to claim for personal injury if a statement of inherent risk is issued. If so, the mirror image ought also to apply: if there is no such statement, a court ought to be able to take that fact into account. Doing so would demonstrate that the organisation concerned had not applied its mind to the risk involved in the activity in question, and that its approach had been somewhat cavalier.
 
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It is important that risk assessments be conducted, and minimising risk is clearly the right thing to do. Of course, we cannot eliminate risk entirely, but we can do a lot to reduce it. Such a reduction in risk could in part be demonstrated by someone's having thought about the issue, and having produced a statement of inherent risk.

Lawrie Quinn: I intervene again in an attempt to understand the true purpose of new clause 11. My hon. Friend seems to be suggesting that a preliminary visit and test of the volunteer activities in question would be necessary, which would probably involve the volunteer leader's replicating the activity in advance. Would not such reconnaissance involve an inherent risk to the volunteer leader?

12.45 pm

Mr. Dismore: My hon. Friend makes an interesting point, but I suspect that such people would still be covered by employer's liability provisions under the Health and Safety at Work, etc. Act 1974, depending on whether they are employed. The real issue is the need to conduct proper assessments. If a proper assessment is done, there is no problem with producing a statement of inherent risk, subject to some suggestions that I shall make later about what should be in it. If there is no statement, the inference has to be that a proper assessment has not been done. In defeating a claim, a court should be able to take into account the existence or otherwise of a statement. If in the civil courts a risk assessment is required—for example, under health and safety management regulations—and one has not been conducted, the absence of such a statement is in itself evidence that can be used in supporting a claim. What I am suggesting in new clause 11 is the mirror image and it is intended to level the playing field, to use the sporting analogies again.

I dealt with new clause 12 when I spoke about exclusions and the size of claims, so I want to move on to new clause 16. It takes us back to some of the points that my right hon. Friend the Member for Holborn and St. Pancras made earlier. In particular, there is the blurring of distinctions between organisations that people generally consider to be voluntary—the scouts and guides, for example—and those that are effectively big business masquerading as voluntary organisations.

I mentioned earlier that there are about 4,500 charities with a turnover of more than £1 million. I do not believe that they can, by any stretch of the imagination, be seen as proper voluntary organisations in respect of what the Bill is trying to achieve. If there is a contract to provide services or a course and someone pays money in return for which a course is signed up to—a bit like a package holiday, I suppose—I think that we are looking at a proper commercial transaction, which should be backed by insurance and proper legal rights for the people who attend the course. After all, someone is making money out of it. Reducing the insurance premium, as the hon. Member for Canterbury wants, is allowing someone to make even more money out of it by reducing the rights of the people involved. It becomes a recipe for cutting corners and allowing people or children to be injured. That cannot be right.
 
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First and foremost, if we go back to the basic principles of what the Bill is trying to address, we should look into the informal arrangements that would apply and not look at cases where money changes hands in accordance with usual commercial transactions.

Lawrie Quinn: In another attempt to appreciate the thought processes behind new clause 16, may I take my hon. Friend back to his home town of Bridlington, where the Royal Society for the Protection of Birds, a charity, runs cruises that allow people to watch the birds off Bampton cliffs? Does my hon. Friend believe that, under the proposals, people involved in that activity would be waiving their right to any compensation if there were a mishap—hopefully there never would be—during the course of the voyage?

Mr. Dismore: My hon. Friend could well be right because there is a contractual arrangement in place. On the other hand, I have occasionally gone to watch the birds at Bampton cliffs and paid a donation to see them. That is different, because there is no contractual arrangement in that case. If I were to trip up and fall in that context, that would be hard luck, but where there is a commercial arrangement in place, that is a very different kettle of fish and we are effectively talking about business. I believe that new clause 16 deals effectively with that point and I am sorry that the hon. Member for Canterbury feels unable to accept it.

New clause 18 deals with the question of occupiers' liability. New clause 26 is also relevant. There are two pieces of legislation that apply—the Occupiers' Liability Act 1957 and the Occupiers' Liability Act 1984. The 1957 Act obviously came first and it imposes a series of duties on a landowner. What I am concerned about is that one cannot really say that a landowner or farmer is a volunteer in this context. The law imposes certain duties, particularly in relation to children and also to trespassers. An occupier is expected to guard against risks on the land. If occupiers' liability legislation were not applicable, a landowner could have the most dangerous pieces of equipment lying around on his land and people could be injured by it, but the landowner could not be sued. In certain circumstances, that might be appropriate, but a blanket exclusion—which is what the Bill in its present form would provide—cannot be right. The law contains safeguards. For instance, the case of Tomlinson v. Congleton, in which someone dived in a lake, addressed the issue of trespassers. It had a robust outcome in the House of Lords, where the trespassers lost. However, children can be mischievous, and if the Bill were to remove liability under the Occupiers Liability Act 1984—new clause 18 would ensure that it remained—an important safeguard would be lost.

New clause 19 may seem otiose, but I shall explain the thinking behind it. It deals with vicarious liability, including for psychological injury, as a consequence of criminal conduct. I had in mind child abuse cases. Everybody accepts that child abuse is criminal. At present, a charity that employed someone—a worker in a children's home or, rarely, a youth or scout leader—who was engaged in child abuse could be sued, through the vicarious liability provisions. However, as the Bill is presently phrased, such cases could not be brought against the organisation employing or organising the
 
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volunteer to look after the children. The Bill does not deal with the question of vicarious liability for criminal conduct, and that is a glaring omission.

New clause 20 proposes that local authorities should not be able to rely on the defence in the Bill, either as it stands or as amended by new clause 29. The argument is similar to that for businesses. The relationship between a voluntary body and a service user is different to that between a council and a service user. A council has a much higher standard to meet. It should set a good example and should not be able to rely on an artificial defence to avoid its liability.

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