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Lawrie Quinn: Would my hon. Friend's definition of local authority be extendable to national parks? Many volunteer activities take place in national parks, and I am concerned that under the Bill they, too, would escape liability.

Mr. Dismore: My hon. Friend has spotted a flaw in my new clause and he makes an important point. If the Bill makes progress, perhaps it could be picked up in the other place. National parks are big business, and they probably would not be covered by new clause 19 or a later amendment on contractual relationships. I have tried to address the issue of scale in my amendments.

Lawrie Quinn: In England and Wales, some 8 to 9 per cent. of the land mass area is covered by national parks, so that is a large hole in the Bill's provisions.

Mr. Dismore: My hon. Friend makes an important point. As I recall, we have just announced another national park, extending the area still further. National parks might be caught by the provisions relating to land owners in new clause 18 on occupiers' liability, but the Bill goes beyond that. If the Bill were to progress, we would certainly have to look a little closer at that issue.

New clause 24 is about insurance, which we referred to earlier, although not in this context. The hon. Member for Canterbury suggests that if there is a proper system—whether a statement of inherent risk or the provisions of his new clause—insurance premiums would fall. I very much doubt that; insurance companies are out to make money, and if they are not making enough money from an organisation they will ratchet up the premium until it goes away.

The important thing is that insurance companies should not be allowed to pick and choose, which answers the point made by my right hon. Friend the Member for Holborn and St. Pancras. If insurance companies can pick and choose according to whether organisations have a statement of inherent risk, there will be a two-tier system. One might argue that that would drive up standards, but on the other hand it could create a huge paper chase. Who knows? However, we can be absolutely sure that if the Bill goes through, in its original or its amended form, insurers will start to take notice and ratchet up their premiums accordingly—unless they are prevented from doing so. New clause 24 would make the Bill insurers-neutral, so that they have no excuse to charge voluntary bodies more if they decide not to take the route currently outlined in the Bill.

We dealt with new clause 25 when we discussed excluding serious injuries. It would cover cases of, for example, paraplegia or severe brain damage. New clause 26 parallels new clause 18, with particular reference to occupiers' liability.
 
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There is quite a bit of meat in new clause 28, which is rather long. However, as subsection (3) of new clause 29 refers to risk and the net consequence of that is that a risk assessment should be conducted, I am amazed that there is no reference to conducting risk assessments in new clause 29 or the Bill as a whole. There is reference to the statement of inherent risk, but that could be written on the back of an envelope. As the Bill stands, no one has to undertake a proper process to check what the risks are.

New clause 28 sets out the basic strategy for conducting a risk assessment. First, it requires that such an assessment should actually be made, which is the starting point. It states that the assessment should try to identify possible harm to individuals and in subsection (1)(c) that it should comply

"with any rules, advice or guidance of any body governing the activity".

As we have heard, there are many organisations looking after the interests of sport and dangerous activities and, as my hon. Friend the Member for Scarborough and Whitby said, they issue guidance and offer proper qualification arrangements and so forth. It is incumbent on people who organise or undertake such activities to ensure that they comply with that guidance, if they are to rely on a defence under the Bill.

Lawrie Quinn: New clause 28 is most important. In a previous life, I was very involved in putting together risk assessments for engineering. In general, they require a clear audit trail and a checking process, so is not my hon. Friend somewhat concerned about the fact that his new clause does not specify those necessary and important aspects, which would ensure that the risk assessment was verified and checked by a more experienced person?

Mr. Dismore: My hon. Friend makes an important point. Paragraph (d) in fact requires documentation of the risk assessment, so there would be a written record, and I would expect that a sensible professional body, such as is referred to in paragraph (c), would set out how an audit trail should be followed.

My hon. Friend will also note that I have tabled amendments that deal with setting up a proper audit trail, by keeping proper records and so on. No doubt, we will come to that amendment later.

1 pm

It is also important to ensure that those who carry out the risk assessment know what they are doing. One of the general problems with health and safety is that people will sometimes do back-of-the-envelope risk assessments without thinking through how such assessments should be done. Again, that relates to the point made by my hon. Friend about the need for properly trained, qualified and experience people to be engaged in those activities. We do not want people bumbling along; they must do things properly. The important point is found in new clause 28(3), which says that the defence provided by new clause 29, if it is accepted, or the existing arrangements should apply if a risk assessment is not conducted properly.
 
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New clauses 30 and 31 were tabled by the Under-Secretary of State for the Home Department, my hon. Friend the Member for Slough (Fiona Mactaggart). I dealt with new clause 30 in my earlier remarks about excluded serious cases. New clause 31 is very important—I touched on the issue earlier—as it refers to people who have a legal disability. My hon. Friend does not use the formal definition of the term "legal disability", which may have been a better construction, but it is clear what she is getting at in referring to people who have "a learning difficulty" or "a mental disability".

So how can anyone in those circumstances be said to have knowingly accepted a risk, which is the requirement of new clause 29? If people have a mental incapacity under the legal definition or new clause 31, which sets out such things in more detail, the present law would say that they could not knowingly accept a risk. New clause 29(3) refers to

"parents of minors suffering harm",

but it does not deal with those who have a legal disability who are not minors—for example, carers, or whatever. My hon. Friend the Minister has identified an important lacuna in the Bill.

Under amendment No. 139, the Bill's promoter proposes to delete clause 1, which is the definitions clause. If clause 1 were substituted by new clause 29, the Bill would become a lawyers' field day because all those definitions would be at large. In amendments Nos. 104, 105 and 106, I suggest various definitions for the word "activity", on which the Bill, without the deletion of clauses 1 and 2, focuses. That word also features in new clause 29(2), in which the phrase "the activity concerned" is used, but nowhere do we see what the word "activity" means—other than in a generic recreational way, under the "for example" wording, which relates to the European point.

It would be far better if we said what we meant by the word "activity". I am not particularly hung up on any of the three definitions given. I offer three alternatives to the House. I should be happy if the hon. Member for Canterbury accepted any of them, but to leave the question at large, without offering any definition, represents woeful negligence on the part of the hon. Gentleman.

Lawrie Quinn: I thank my hon. Friend for giving way once again, but may I chide him for the drafting of amendment No. 106? In an earlier part of the proceedings, he went to some length to try to protect the Secretary of State from extra work. It seems somewhat illogical that, under that amendment, he is trying to give the Secretary of State some additional work. Regrettably, I will not be able to support that amendment if it goes to the vote.

Mr. Dismore: My hon. Friend throws my argument back at me. I am not particularly fazed by that, as I am offering an alternative. I think that we need a definition of "activity" and I have come up with a couple. I do not have access to my hon. Friend the Minister's legal team nor do I have access to the High Court judge to help me with my drafting that my right hon. Friend the Member for Holborn and St. Pancras and the hon. Member for Canterbury mentioned. I have done my inadequate best
 
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as a personal injury lawyer to try to come up with a definition. Someone may well come up with a better definition, and that is why I have left the option open—as an olive branch to the hon. Gentleman—to allow the Secretary of State to come up with one.

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