Promotion of Volunteering Bill

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Fiona Mactaggart: I agree that we need to encourage landowners and farmers to allow their land to be used. That is sensible. However, I do not believe that the procedure set out in the Bill will succeed in doing that. It will have unintended consequences. For example, the mechanism means that the farmer or landowner shares responsibility for the risk inherent in the activity, because he or she benefits from the statement of inherent risk. It places on the other signatory to the statement of inherent risk a shared responsibility for the risk associated with the condition of the land. Frankly, in many cases, it is not possible for people to share such a responsibility. They are not in a position to do so because it involves an unknown quantity with regard to the participants and probably also to the provider of the activity.

Lembit Öpik (Montgomeryshire) (LD): Perhaps I am being a bit harsh, because it is, relatively speaking, early in the morning, but I must say that there does not seem to be an ounce of good faith in the Government's approach. There is no allowance for the fact that, on the whole, farmers will not set out to allow young people on to dangerous land. The Minister must have anticipated the question that I am going to ask her, given last week's debate: can she provide us with an example of a farmer having allowed people on to land knowing that it was in poor condition? Perhaps she

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can provide us with a plausible example, but if not, it will be clear that the Government are once again coming up with ideas that have no basis in reality.

Fiona Mactaggart: I am saying that this measure is an inappropriate way of dealing with the problem that arises. I do not believe that farmers' fear of allowing their land to be used is well founded. I am concerned that the measure is an inappropriate way of dealing with the matter and that it will increase fear in the landowning and farming communities. I am trying to point out its potential consequences. The vast majority of farmers would not do what the hon. Gentleman describes. I have absolute good will, and that is one reason why such provision is unnecessary.

9.45 am

Mr. Burnett: Clause 2(4)(c) states that a court shall

    ''only uphold any claim for negligence or breach of statutory duty where it would manifestly be unreasonable not to do so.''

If there is manifest unreasonableness, the courts could push a coach and horses through the statement of inherent risk. The Minister has things covered all ways.

Fiona Mactaggart: I do not think so, and I will explain why. Manifest unreasonableness is required, and I do not believe that such situations will generally occur. One must consider the case law to date: in every case about landowners of which I am aware, the decision has supported the landowner—this includes parks with swings and so on—against claims of negligence related to their activities. I do not know of a single case in which the measure would be necessary, although there might be one.

Manifest unreasonableness would not necessarily cover someone who had not bothered to check whether the condition of their land was safe in every respect. The current law provides adequate protection, and the suggestion that such additional protection is required simply feeds anxiety.

Kate Hoey (Vauxhall) (Lab): I suggest that when the Minister gets into a hole on the subject of land, she should stop digging. She says that there is no problem, but we would not be supporting the Bill if it were not for the fact that so many of us know of people and groups in our constituencies who have been unable to obtain access precisely because of the problem with which it deals.

Fiona Mactaggart: They cannot get access because of the perception of the problem.

Mr. Burnett: That is wrong. I have not practised as a lawyer for more than 10 years, but I can refer the Minister to the two leading cases—I hope that my memory serves me right—of Pannett v. McGuinness and Herrington v. British Railways Board, in which the railway company was held liable to trespassers on the railway. If she has not seen those cases, she needs to do so. Such cases are what feed fear, cause growth in insurance premiums and destroy voluntary activity throughout the country.

Fiona Mactaggart: I have not seen that case.

Mr. Burnett: There are two cases.

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Fiona Mactaggart: I understand that. The cases that I have seen included that of the Isle of Wight and others. I will look carefully at the cases that the hon. Gentleman cites, as I have often found when looking at cases to which hon. Members have referred that their final resolutions raise questions that are rather different from those raised in debate.

On amendments Nos. 31 and 65, I sympathise with the intentions of the hon. Member for Canterbury in seeking to simplify the position of instructors of police and armed forces cadets. I have explained that paragraph (c) would give instructors volunteer status, whether or not they are being paid. Amendment No. 65 would have the same effect, but extend the scope of the Bill in this area.

There are two issues at stake, and they would remain the same even with the proposed new wording. If an instructor supervises an activity as part of his paid employment, his responsibilities are likely to be covered by the Health and Safety at Work etc. Act 1974; the hon. Member for Canterbury and I have discussed that matter extensively. The Bill should not cut across those provisions. Employers' duty of care to their employees and to those for whom they provide a service must remain intact, and it is important that that should be sustained everywhere—in schools, and in relation to the services that have been mentioned. He would not want to lessen the impact of that legislation for cadets or trainees in those services, but I am concerned that his amendment might do so. Such services all require discipline, and introducing the proposed statement of inherent risk could open the gates to recklessness. I do not believe that that is his intention, but that is the risk.

Crucially, if an instructor from one of those services were acting in a voluntary capacity, and other than in their paid employment or on a commercial basis, they would in any event be covered by the term ''volunteer'', as defined in amendments Nos. 28 and 29, provided that the organisation for or with which they were working was covered by the definition in the Bill.

The term ''volunteer'' is very clear. When a person is involved in a voluntary activity, they are a volunteer, and when they provide a service for which they are paid, they are an employee or commercial operator. In these circumstances, I do not believe that we need specifically to identify cadet instructors. That would potentially confuse the term ''volunteer'', which is a precious term, and open up the prospect of legal challenge about its exact meaning.

Lembit Öpik: To save time, I shall ask my two remaining questions together, although they are slightly different.

First, why would a nurse walking down the street, for example, be liable to be sued if he or she helped somebody who was having a heart attack, and did so because they had a professional qualification, while somebody such as me who has no such qualification would not be liable? Would that not apply in the circumstances that we are talking about?

Secondly, what protection is the Minister offering to farmers who come a cropper after having acted in

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good faith? Simply promising to do something about that is not good enough; if the Government are rejecting this proposal, we need to understand what they are promising to do and when they will do it.

Fiona Mactaggart: On the first point, I think that the hon. Gentleman is introducing a completely separate issue, which is dangerous. This measure covers people who are not merely walking down the street, but undertaking activities provided by a voluntary or volunteering organisation, and the question is whether they are working as volunteers or employees. That is not comparable to the issue of reasonableness and carefulness, which is different according to people's different qualifications. One example is covered by the Health and Safety at Work etc. Act 1974, and it relates to someone's professional employment. The example that he cites is not connected with such circumstances, but is more related to measures debated in the previous sitting that were rejected and to the so-called good Samaritan clause.

The second point was about what we can do for farmers. My difficulty is that I do not think that the Bill will have the intended effect. It is interesting that other organisations in the sector that were enthusiastic about it have become less so, not because they do not want the problem to be fixed, but because the more they look carefully at that problem, the more they realise that it is as much about the way in which a risk assessment is conducted and about public information and the relationship between providers and insurers as it is about what happens with litigation in court. That is the risk.

Having sought carefully to collaborate with the hon. Member for Canterbury in trying to draft appropriate legislation, I have been persuaded that a Bill that focuses on the way in which the court deals with litigation and compensation claims holds within it the profound risk of worsening the problem. It could generate litigation to test the boundaries, which would push up insurance claims.

Mr. Burnett: Obviously, there will be litigation on points such as manifest unreasonableness—there is bound to be some—but at least such provision will change the boundaries of risk and lessen or mitigate it. We on the Opposition Benches acknowledge that we cannot have black and white legislation. The provision would lessen the risk and the insurance premiums, and, in due course, far more people will volunteer.

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