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Lawrie Quinn: Earlier, my hon. Friend defined "minor" as covering those up to the age of 18. Does his amendment imply that he is more comfortable with defining it as those up to the age of 14, since further education can generally start from around that age?

Mr. Dismore: I have a later set of amendments dealing with the question of age and at what stage a defence may be used to defeat a claim by a minor, so we could return to the matter at that stage. Perhaps I am adopting a belt-and-braces approach. My hon. Friend raises an important point about the age of responsibility and the age at which a minor becomes aware and can accept and understand risk. I accept that I might be arguing against myself in relation to further education and higher education activities. I offer that olive branch to the hon. Member for Canterbury.

Amendment No. 140, which stands in the promoter's name, would delete clause 2. I find that surprising, given that it is the essence of the Bill, but that is his choice.

Amendment No. 41 tries to redefine, or to specify more effectively, what a volunteer is. It would mean that this part of the Bill would apply only to real people, not to organisations in the more general sense.

Amendment No. 121 deals with the qualifications of the individual volunteer who may be responsible for issuing a statement of inherent risk. That goes back to a point that my hon. Friend the Member for Scarborough and Whitby made earlier: we have to be sure that, if a defence is to be reliable, the people who conduct the
 
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activity know what they are doing. It is important to ensure that they have undergone the appropriate training and have the relevant qualifications. That could simply mean a certificate that the Scout Association issues for different levels of activity or a more important qualification. However, it is important that, in each case, the person is properly insured.

Amendment No. 39 deals with the person to whom the statement of inherent risk should be issued. The Bill contains a lacuna because it provides for the statement to be issued to the person concerned and does not draw a distinction between an adult and a minor. Little Johnny, aged 12 or 13, may be given a statement, but we all know what happens to letters on the way home from school, and he could fail to deliver it to his parent. If little Johnny is given a letter by the scout master or guide leader, it is important to overcome the problem of his not taking it home. In the case of a minor, the statement should be issued to the parent or guardian. That is basic common sense, and I hope that the hon. Member for Canterbury will accept that.

Amendment No. 40 is a clarification. We currently have the broad phraseology, "under the control", which the amendment would replace with

"administered or managed by or".

That is a little tighter. Amendment No. 42 again covers a real volunteer rather an inchoate volunteer in the form of an organisation.

Amendments Nos. 122, 43, 125 and 138 deal with risk. The Bill provides for the statement of inherent risk to identify only

"the types of risk likely to be encountered".

That is very general. I am worried that it is far too general. If we consider the Lyme bay tragedy, there was a general risk of drowning but the activity involved a series of other risks, which might not have been appreciated under the Bill. Instead of simply discussing the principal risks, it is important that a proper risk assessment is conducted to identify all the risks. That is proper health and safety. If the risks have all been identified, there is no reason why the statement of inherent risk should not set them out. It is therefore wrong to allow the relevant organisation to pick and choose the risks that it specifies; it should set them all out after conducting a proper risk assessment.

The definition of "inherent" is wrong and we should consider the risks that are associated with an operation. In the Lyme bay tragedy, they would have included the fact that the instructors were not properly qualified.

Amendment No. 44 again fills a lacuna in the measure, which refers to "personal" in the context of personal injury but does not deal with psychological injury. It should also be included for reasons that I advanced when I talked about the Warsaw convention earlier.

Amendment No. 124 deals with the measure's wording about risks that are "likely to be encountered".

That constitutes a subjective assessment. The amendment would replace those words with, "which may" be encountered. That is an objective assessment. "Likely to be" encountered means that someone has a think about the matter and says, "Well, maybe we will, maybe we won't." However, "may be" encountered is a more objective test, which would be subject to the "man
 
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on the Clapham omnibus" approach. In other words, it is a broader approach, and I believe that the phrasing is far better.

I have already dealt with amendments Nos. 125 and 138 and I do not want to repeat myself.

1.30 pm

Amendment No. 46 deals with the suggestion that civil liability ought to be excluded from the provisions. Line 41 on page 2 of the Bill deals with the exclusion of criminal liability, and I have already touched on that matter in the context of vicarious liability in regard to child abuse. Here, however, we must ask ourselves what we are trying to do. Are we trying to take away people's rights or to make people more aware of the risks that they are expected to undergo? I would be a lot happier if the Bill were effectively saying to people, "Okay, these are the risks that you are going to undergo. Think about what you are going to do and conduct the activity more safely, but this is not going to affect your legal rights in the end." That would be a far fairer and more appropriate way of approaching this issue.

If, as a result of having to prepare a statement of inherent risk, the organisers of these activities are thinking about the risks in a much more focused way, and if that statement is issued to the person who is going to undergo the activity—or their parents, which is not provided for in the Bill as it is currently phrased—there would be a coming together of an analysis and an acceptance of those risks. That would make the activities more suitable and more understandable, and in the end, people would know where they stood when they undertook them. The dangers would have been explained to them and, ultimately, that would make the whole operation safer. That would be a far better way of dealing with this issue than taking people's rights away.

Amendment No. 126 deals with compulsory activities. The Bill is over-prescriptive in this regard. I cannot see anything wrong with a statement of inherent risk being issued for activities that are compulsory, if we accept the basic premise that I have just outlined. We are trying to get people to be more aware of the hazards and risks, and just because an activity is compulsory, it does not mean that it is less risky. However, if an individual does not receive a statement, because they do not have to, or because they are prevented from doing so, they might not appreciate the risks involved. We could end up with the inverse argument that, because an activity is compulsory, the defences do not apply and there is no need to issue a statement of inherent risk. That seems rather back to front. Statements should still be issued, even if no defence is created, because it would make things a lot safer.

Lawrie Quinn: It is often mandatory for people to undergo certain activities to gain sufficient experience to progress to a higher level in voluntary organisations—the level of leader, for example. How does that fit in with this definition of "compulsory"?

Mr. Dismore: My hon. Friend's question refers to some of the points that I made earlier. The Bill currently provides a defence in relation to voluntary activities. However, volunteers might also be engaged in
 
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promoting compulsory activities. I think that I am right in saying that school sports are compulsory, for example, and a volunteer could come in to help the school with compulsory games. As the Bill stands now, if the games were voluntary—out-of-hours games, for example, such as extra rugby or football training—a statement of inherent risk would have to be issued. If exactly the same games were compulsory, however, no such statement would be needed. That is a bit back to front, because we should be concerned with the nature of the activity rather than the question of compulsion. We are talking as much about protecting the person engaged in the activity from being hurt as about protecting the volunteer from being sued. The hon. Member for Canterbury has missed a trick in terms of the way in which the Bill deals with compulsion.

A similar argument might be made in relation to amendment No. 127, so I shall not repeat myself. Amendment No. 119 seeks to address the fact that the Bill overlooks the question of peer group pressure among young people to engage in activities. Leaving out the word "obliged"—with its suggestion of compulsion—and substituting "invited" would address that problem.

Amendment No. 120 is very important. I think I am right in saying that a third of the accidents in which people are injured while undertaking those voluntary activities are road accidents involving vehicles carrying someone on the public highway. A third of them involve skiing and similar accidents and the remaining third are a mixed bag. Those are the latest figures I have seen.

For the life of me, I cannot think why it is appropriate to exclude road accidents by providing this additional defence. Cars, vans and other vehicles have to be insured—that is the law—in case of accidents that cause personal injury. Indeed, if they are not, there are fall-back arrangements with the Motor Insurers Bureau. I cannot understand, therefore, why there should be under the Bill a defence for somebody who causes a road crash and injures someone.

Often, injuries caused by road accidents are far more serious than those caused in other accidents that occur at, for example, scout camp. The most dangerous part of the voluntary activity might be getting to and from the venue rather than participating in it. For those reasons, I cannot for the life of me understand why we cannot have an exclusion from this defence for road accidents.

The amendment also refers to the Unfair Contract Terms Act 1977. I will not detain the House with analysis of that Act, although I have tabled an amendment that relates to it. If there is time and we reach it, I shall develop my arguments at length as to why the defence should not apply to cases in respect of that Act. Essentially, they are those where money changes hands, but written exclusions may also be involved. We will return to that.

Amendment No. 114 is also a tidying-up exercise. The word "indicate" appears in the Bill. How are we to "indicate"? With smoke signals? That might be how it is done at scout camp. I think that we need a much clearer definition, and the word "state" is much more understandable.
 
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Amendment No. 115 comes down to the question of supervisory skills. Again, we return to the question of ensuring that the individual concerned has the formal qualifications and training. As things stand, somebody who may be engaged in supervising what may be inherently dangerous activities may be a beginner. There is nothing here to suggest that the volunteer should be supervised or have the appropriate qualifications for the activities concerned.

That brings me to amendment No. 48, which suggests that if one is to be in charge of dangerous activities, it follows that the individuals concerned should have the appropriate qualifications issued by the

"professional, sporting or other umbrella organisations with recognised experience in the field"

with which the organisation in question is involved. Of course, one could be too prescriptive here, but it is extremely important that people have the right qualifications if they are to be put in charge of children.

Amendment No. 49 deals with the question of a risk assessment. I have already mentioned the importance of risk assessments, but not what should happen when they are done. It is a lacuna in the statement of inherent risk that there is no reference to the fact that a risk assessment has been done—or not, as the case may be. If my amendment were accepted, the absence of a risk assessment would highlight for parents the fact that they should ask, "Hello, what's going on here?" A risk assessment ought to be done.

Furthermore, we should know not only that a risk assessment has been done, but who did it and when. Parents, if they are to sign away their children's rights, which is what the Bill asks them to do, are entitled to know when the hazards were last inspected and whether the person who did the check knew what he was doing. That is the essence of amendment No. 49.

Amendment No. 50 is a little more specific in this context, and it deals with the question of safety inspections for outdoor activities. Most of what we have been talking about relates to those. Outdoor activities may involve very different hazards. If a safety inspection is done on premises or land outside, it is important that the risk assessment and the statement of inherent risk should specify when it was carried out. For example, if one were to assess a ramble across the moors, whether that assessment was done at night or in daylight would make a big difference, as would whether it was done in midwinter or summer.

When I was in the sea scouts many years ago, I went on what is known as the Lyke Wake walk, which I am sure that my hon. Friend the Member for Scarborough and Whitby will know. It is 42 miles across the north York moors. I am not sure that there was a risk assessment in those days, but I emerged unscathed but rather tired—

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