| Promotion of Volunteering Bill
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Fiona Mactaggart: If all that the provision did were lessen risk, it would be fine, but if it opens the door to negligence and inappropriate lack of care for children who are volunteering, as I fear it would, it would be a profound problem, which no Committee members want. That is why I am concerned. Mr. Burnett: If there were a lack of care for children, it would manifestly be unreasonable. Fiona Mactaggart: I do not accept that a farmer's lack of care in investigating all the things that might exist on his farm would necessarily meet the test of Column Number: 46 manifest unreasonableness when he says to the local scout troop, ''Oh, do anything on the land.''Mr. Derek Wyatt (Sittingbourne and Sheppey) (Lab): Even if the Minister cannot tell me this now, could her legal officers put into the public domain their analysis of the insurance laws in Queensland, New Zealand and throughout America that have covered this issue? If we had such information, we would be in a better position to understand this issue. Fiona Mactaggart: I could ask for the information, but I can tell my hon. Friend that those countries have dealt with the issue rather differently. Rather than shifting the burden of proof, which is what the Bill would do, they have created a bonding system and have organised that within the insurance market. That seems to be beginning to work. One of the problems in trying to find a consensus with the Bill's promoter is that it has not been possible to develop a system as complex as those in other countries, which might be more suitable. If the consequence of shifting the burden is to allow for negligence, I do not believe that any of us would want that.
10 amMr. Lindsay Hoyle (Chorley) (Lab): As the Minister is developing the idea of the bond system, may I ask who would put up the money? We understand the insurance bond sold in relation to insurance companies; presumably, it must be the landowners that are to chip in for the bond. Will the Minister correct me if I have got that wrong? Fiona Mactaggart: The bonding system works much more with the clubs and groups occupying the land, as I understand it. Mr. Frank Dobson (Holborn and St. Pancras) (Lab): What that amounts to is clubbing together to pay lawyers' fees. I know that the Minister wants the law changed, just as practically everyone else in the Room does, and that she has difficulty with the Government's lawyers—for what they are worth. However, as I understand it, there was a common law defence of voluntary assumption of risk—volenti not fit injuria, for those who had a classical education. The Chairman: Order. This is a rather long intervention. Mr. Dobson: What is wrong with seeking, through the Bill, to override the provisions of the Unfair Contract Terms Act 1977, which took away that common law defence? Fiona Mactaggart: That defence still exists. Our concern is that this proposal goes much further than volenti not fit injuria, for which there is a common law defence. The proposal would open the door to unsafe practices and allow those who conduct such practices to get away with it. The hon. Member for Torridge and West Devon deserves a reply to his point. I have discovered the answer to his point about Panet and Macguinness, and it is relevant to our discussion. Those cases were decided in 1972, at a time when common law was generally agreed to be particularly harsh on trespassers. Those cases led to Parliament passing the Occupiers' Liability Act 1984, which sets out the Column Number: 47 current law. It might be helpful to read what Lord Hoffman said about occupiers' liability in that Act:
this was in the case of the Isle of Wight council—
The concerns of the hon. Member for Torridge and West Devon have been dealt with by the 1984 Act. Mr. Dobson: My hon. Friend the Minister has raised the matter of swimming; I have received representations from the Hampstead heath winter swimming club, which tells me that it is having great difficulties in its negotiations with the Corporation of London, which is responsible for Hampstead pond, about the un-lifeguarded use of the pond. The Minister's response would mean that an organisation as responsible and well lawyered as the Corporation of London is dominated entirely not by the law, but by an urban myth that there are problems with the issue; I cannot believe that. Fiona Mactaggart: The case that I cited—it was not to do with the Isle of Wight, so I apologise to the Committee—was about precisely that. Perhaps my right hon. Friend should write to the Corporation of London to point out that the claimant in Tomlinson v. Congleton Borough Council suffered a broken leg after diving into a lake in a council-run country park. Swimming in the lake was prohibited, and there a notice was displayed to that effect. Mr. Brazier: Will the Minister confirm that the case, which went all the way to the Court of Appeal, was resolved only after many years of extremely expensive litigation? Fiona Mactaggart: That is true, and it is a problem. The case went to the Court of Appeal, and I read out Lord Hoffmann's judgment, which is absolutely clear. I recommend that my right hon. Friend the Member for Holborn and St. Pancras send a copy to the corporation because the judgment deals precisely with the matter before us. Mr. Dobson: My hon. Friend suggested that I might do well to look into things more closely. I am advised that the judgment depended on the particular facts in the case and that it is not possible to determine the extent to which the lower courts would give proper effect to the broader principles. People who are trying to swim and people who have a pond still do not feel that the law is clear enough. They think that Parliament's job is to make laws, not to say, ''Go to the courts to sort things out.'' Fiona Mactaggart: I understand that. The problem is that we are dealing with a matter of perception. Where the courts have reached a final decision, they have, as in the case before us, taken the view that we, as a Committee, would have wanted them to take. Column Number: 48 Bearing in mind that many of the activities that we are discussing will be undertaken by children and that a landowner's action must be reckless if they are to be liable to prosecution, the question is whether we should legislate in a way that creates the possibility of negligence. The Bill says not that people should take basic, sensible, reasonable safety precautions, but that they can choose not to do so and that they will be free of all liability unless they are reckless in choosing not to do so. That is not what we want to achieve. All I am trying to suggest is that the risk in the way the Bill is constructed is that we will allow negligence rather than, as we all want to, preventing over-restriction, in the form of provisions that seek to make people completely bomb-proof in terms of liability. Mr. Burnett: I really must come to the aid of the right hon. Member for Holborn and St. Pancras, who is quite correct. The Unfair Contract Terms Act 1977 dramatically changed the defence of volenti non fit injuria. The fact, which is mentioned in an excellent House of Commons Library publication about the promotion of volunteering, is that the mere knowledge of risk does not necessarily imply assent. In the Bill, we are trying to redress the unfair balance against volunteers, which the House put in place in the Unfair Contract Terms Act 1977. Fiona Mactaggart: Actually, most of the cases that we are discussing have little to do with volunteers. However, bearing in mind the cases that have been decided, I do not accept that we have shifted the balance in quite the way that the hon. Gentleman suggests. There is an issue about trying to ensure that people can undertake adventurous activities safely. There should be a responsibility to conduct such activities safely and carry out proper risk assessments, and we should not encourage people to avoid that responsibility. I am concerned that the proposals might not achieve that. I must proceed, because I am trying not to use the Committee's time excessively, yet it feels as though I am, given the length of time that I am taking. Amendment No. 63 proposes to clarify the meaning of the terms ''paid employee'' and ''employee'', where they appear in the Bill. I am concerned that such definitions would conflict with the term ''employee engaged in volunteering'', as provided for earlier in the clause. As drafted, amendment No. 63 would enable a volunteer acting in a voluntary capacity in an organisation to be referred to as a paid employee or an employee. In such circumstances, it is right that, as has been provided for, such a person should be defined as an employee engaged in volunteering. To refer to such a person in any other way would contradict the definition prescribed earlier. Doing so would also raise questions for voluntary organisations and voluntary bodies that employ staff to pursue their work, whether those staff be employees, paid employees or employees engaged in volunteering. Such a proposal would also confuse the status of those people and would not be helpful. It is important to be clear about the status of the people whom the Bill might affect. If the Column Number: 49 amendment were accepted, the status of people who give their time and skills freely to their employers, where the employer is a voluntary organisation or a volunteering body, would not be clear.I have sought to cover everything. There are some further matters that, as I said, I shall seek to make more public for the Committee.
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