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Standing Committee C
Wednesday 12 May 2004
[Mr. David Taylor in the Chair]
The Chairman: I remind the Committee that a money resolution is necessary for clause 2(5). However, I note that an amendment to leave out that subsection has been tabled in the Minister's name, so the Committee can agree to the amendment and then continue to consider the rest of the Bill.
Amendment proposed [5 May]: No. 28, in
Question again proposed, That the amendment be made.
The Chairman: With this we are discussing the following amendments:
No. 29, in clause 1, page 2, line 2, at end insert
'(other than a person acting in his capacity as an employee of that organisation or body)'.
No. 30, in clause 1, page 2, line 3, leave out paragraph (b).
No. 65, in clause 1, page 2, line 7, leave out paragraph (c) and insert—
'(c) an instructor of the Combined Cadet Force, the Sea Cadet Corps, the Army Cadet Force, the Air Training Corps or any other uniformed youth organisation administered by the Armed Forces or Police whether or not such person is paid.'.
No. 31, in clause 1, page 2, line 7, leave out paragraph (c).
No. 63, in clause 1, page 2, line 8, at end insert—
' ''paid employee'' means any natural person employed by a voluntary organisation whether or not paid at the time and ''employee'' in the Act shall be construed accordingly as including any such paid employee.'.
Mr. Tim Boswell (Daventry) (Con): I assure you, Mr. Taylor, that I shall trouble the Committee for only a moment, as the debate has already been extensive.
As probably the only member of the Committee who has a working farm—I take a lively and direct interest in it, despite my other duties—I want to record for the information and benefit of the Committee the fact that, in my experience, permission by farmers and landowners allowing their land to be used is an important part of the scene. Although we may table further amendments in another place, I stress that the Bill is about giving such permission voluntarily rather than for payment, which is the norm. I have often said to my wife that if I kept a register of all the things that people ask to do on my land, let alone of what they might do without permission, I would have a busy time. Only yesterday, I received a telephone call asking whether some people could ride their horses on my set-aside land.
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I do not want to detain the Committee, but I add one further consideration. Farmers usually give permission readily. Prudent farmers check with their insurers whether they are covered, and the typical insurance policy certainly allows such activities, on notice, without an additional premium. Nevertheless, the fact remains that if a run of adverse experience leads to claims, it will feed into the costs of premiums. As a result, even if farmers do not make money from the process—most do not do so for such occasional uses—they may be faced with higher third-party liability premiums. That would depress their readiness to allow such activities. I simply record that negative aspect for the Minister's consideration.
Mr. Julian Brazier (Canterbury) (Con): I am indebted to the hon. Member for Loughborough (Mr. Reed) and to the Minister for mentioning the anomalies between the various amendments.
I stand by everything that I said about farmers and landowners—my hon. Friend the Member for Daventry (Mr. Boswell) has just made an eloquent point on the subject—and about the importance of the cadet corps. The bulk of the activities of the cadet corps are unpaid, except for the Army and Air Force cadets when they go off for the weekend and sometimes the Sea Cadets.
Our debate has thrown up the fact that the Bill has missed an important group. The hon. Member for Loughborough mentioned part-time coaches, but a problem also arises with regard to adventure training. The Youth Hostels Association, which is a strong supporter of the measure, would be deeply concerned if it thought that producing a certificate to secure protection would shift the burden to paid wardens in youth hostels. Amendment No. 63 would extend the measure to full-time or part-time paid employees of voluntary organisations.
Amendment No. 65 is a drafting amendment. It was pointed out to me that the description of the various categories of people is not clear. For example, some are affiliated to the Royal Navy as naval cadets, but there are at least three groups, and they have recently been reorganised. I have therefore listed the names of the principal groups and taken advice to word the provision so as to cover new groups.
As I said, I am happy to accept Government amendments Nos. 28 and 29, but I urge the Committee to resist Government amendments Nos. 30 and 31 and to support my new amendments Nos. 63 and 65.
The Parliamentary Under-Secretary of State for the Home Department (Fiona Mactaggart"8,1>): It is a pleasure to be chaired by you, Mr. Taylor, and I am confident that it will continue to be.
As I explained, under paragraph (b), the term ''volunteer'' would be extended to a farmer or other landowner who may permit his land to be used for voluntary or educational activity. My concern is that that would allow such a person to permit their land to be used for such activity, knowing that the land was dangerous for whatever reason, but to seek exemption
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from liability in the event of an accident caused directly by their negligence.
The Bill and its promoter, with whom I have had productive conversations to try to find a way of solving the problem that the Bill seeks to address, have a difficulty. We must recognise that the Government have not used their usual powerful panoply of tricks—it is quite wrong of me to call them that; they are, rather, the resources at the Government's disposal—to destroy the Bill at an early stage, because we recognise that it seeks to address a genuine concern. Indeed, we hoped to be able to use it to deal with that concern, but our efforts were frustrated by the fact that the more we investigated the issue, the more we believed that it risked making things worse and did not solve the problem that we are all trying to solve. That is why we are here in Committee and I have not had the joy of speaking at great length on a Friday morning, which I am quite capable of doing and have done before.
The clause is an example of the temptation to try to fix a whole load of things that are perceived to be problems, but not necessarily in a way that will work. The hon. Member for Canterbury (Mr. Brazier) cited the case of the farmer who alerted him and his sons to the fact that a particular part of his land that is a vehicle dump could pose a risk and should be avoided. The problem with the clause, however, is that it would actually allow a farmer or another landowner not to provide such information at all. Indeed, landowners who allowed their land to be used in return for a fee could seek the resource—
Mr. John Burnett (Torridge and West Devon) (LD): I should declare that I am the owner of some farm land.
I do not want to detain the Committee, but I wonder whether inserting the phrase ''for no consideration in money or money's worth'' after the word ''shall'' in paragraph (b) would provide a solution and ameliorate the position?
Fiona Mactaggart: That would deal with the specific point that I was making, but not with the whole substance of my concern. The hon. Gentleman points out a flaw that needs to be remedied in some way, but my fundamental concern is that farmers and landowners should not be allowed to permit their land to be used if they know that it is in a dangerous condition, and neither should they abdicate their responsibility in respect of such land. There is a risk that the clause would allow negligent behaviour by landowners in providing them with broad protection even when they were not acting as volunteers but merely permitting their land to be used—something that is covered by the Occupiers' Liability Act 1984.
Mr. Boswell: I understand the Minister's concern that farmers might try to absolve themselves of the general liabilities arising from their occupation of the land in connection with the activities being carried on there. Those are two different risks, however, and I
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should have thought that it was not beyond the wit of the Committee to devise an amendment that would split them. The provisions could enable farmers properly to assess the risks attached to the land, so that they would not transfer those risks; they would transfer the risk only with respect to the inherently risky activity.
Fiona Mactaggart: That is precisely why we want to remove the relevant paragraph; the inherently risky activity must be dealt with as such, and in the main, that is the approach that the Bill takes. The statement of inherent risk, about which we have reservations that will arise later, is a mechanism to deal with the risky activity. The Government want to remove the paragraph about farmers because the activity is what involves risk, whereas—this seems to me precisely what the hon. Gentleman was getting at—paragraph (b) is an attempt to introduce the issue of the state of land as a kind of escape clause, or rather, as that is not really an appropriate phrase, an issue to be thrown into the pot. It seems to us that that is inappropriate.
Mr. Brazier: On payment, I should be happy to accept on Report the amendment suggested by the hon. Member for Torridge and West Devon (Mr. Burnett). However, with respect to the Minister's broader point, as we shall see later, the provision does not wholly remove the ability to sue where reckless disregard can be shown; it simply raises the barrier for negligence.
The fact is that it is only the willingness of local farmers that makes many field trips and scout and guide activities possible. Scout masters, teachers and others are very careful about such matters. The criminal law requires them to be careful. We owe the people concerned a degree of protection, or we shall simply lose them.