|Promotion of Volunteering Bill
Fiona Mactaggart: The amendments relate to subsections (2) and (3) of clause 2. Subsection (2) states that the statement of inherent risk must be in writing, and introduces the notion of shared responsibility. Subsection (3) gives further details about risks covered by the SIR and states that it has no impact on criminal liability and does not apply where there is an element of compulsion.
The hon. Member for Canterbury knows that we have reservations about the drafting of those subsections, and he has sought to compromise and to improve the Bill by addressing our concerns. I thank him for that, but, unfortunately, his proposed amendments do not go far enough.
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Amendments Nos. 41 and 42 are paving amendments for amendment No. 44, which sets out what we would expect an SIR to contain. It covers the same ground as amendment No. 64, which was tabled by the hon. Gentleman himself. Amendments Nos. 43 and 47 would make minor drafting changes, and amendment No. 46 would delete subsection (3)(a), which we believe to be unnecessary.
The Bill is intended to tackle frivolous claims, rising insurance premiums and the fear of litigation. We believe that those aims should be met by the improvement of behaviour and the development of a safety culture that is based on sound risk assessment and management. The best way to prevent claims is to prevent accidents. I believe that we all share that ambition. The question is how we achieve it.
The Bill is one-sided. It shifts responsibility for the safe conduct of activities to the participant. I recognise that the participant has a role to play, but the Bill does not address the behaviour of providers and volunteers. Amendment No. 44 would mean that the SIR would have to state what measures the provider is taking or intends to take to minimise risk. That is a proper thing for participants to expect. They need to know that the person who is organising an activity has taken proper steps to minimise risks. They should also know about the provider's relevant training and qualifications, the provider's legal obligations to the participant and what the participant may do in the event of an accident.
That first point is crucial. I note that the hon. Member for Canterbury tabled an almost identical amendment that he later withdrew, which is a pity. The measure would focus the provider's mind on risk management and what he should do to ensure that the activity is as safe as possible. It would also reassure participants, go some way toward removing the barrier that we are anxious the statement would otherwise present, clear up ambiguity about who is responsible for what, and ensure that participants do not share responsibility for such things as the upkeep of safety equipment, which is clearly the responsibility of the provider.
The amendment emphasises the notion that with rights come responsibilities. When the hon. Gentleman and I discussed whether we could reach agreement on the Bill's construction, I pressed that concept, and he was willing to accept that there are rights and responsibilities on both sides. The rights of providers to be free from frivolous or vexatious claims should be balanced by their responsibility to do all they can to minimise risk. Participants' responsibility to behave responsibly should be balanced by their right to claim if they are injured as a result of someone's negligence.
The hon. Gentleman says that he withdrew the amendment regarding the minimisation of risk, because he had received legal advice that it might encourage litigation. We are confident that that advice was wrong. Our approach would help to reduce the number of accidents giving rise to a claim in the first place. If providers implement the measures, they will demonstrate to insurers and the courts that they did all
Column Number: 74they could to minimise risk. The only reason why the measure might give rise to a claim would be if the provider had not put the appropriate measures in place. Of course, if participants are injured as a result of such a failure, they should be able to claim.
We agree about the relevant training and qualifications. The legal obligations on the provider are desirable because they will help to reassure participants and parents. They may prevent the situation in which many people choose not to take part in activities, or choose not to allow their children to take part in them, because they refuse to sign their rights away.
We know that the statement of inherent risk is not intended to be mandatory, but we also know, because we are realists, that people may feel obliged to sign if they are to participate, because, ''That is the way we do things in this club,'' or for whatever reason. The measure is also likely to give statements of inherent risk more teeth, as the courts will look on them more favourably if they are balanced than if they seem to exclude everything. Moreover, the idea of reasonable exclusions is well established.
I understand the hon. Gentleman's concern that there are already enough lawyers and advice centres out there drumming up business, and we do not need to add to them. I agree to an extent, but we are simply suggesting that there should be a statement of fact that informs people of their legal rights. That is not an encouragement to sue. It is important that people know that they have legal rights. Their legal rights would be diminished if the hon. Gentleman's later amendments were passed. People have legal rights, and it is important that they should know them.
Subsection (2)(d) in amendment No. 44 explains what people may do in the event of an accident. It is not supposed to encourage all participants to sue in the event of an accident, but it will be a statement of fact, and can set out the fact that the first port of call is the provider. The participant may not have been badly injured, but may have suffered damage to property, so compensation does not always mean a large payment; it may mean that the payment is fixed.
It is not unusual for documents that affect legal rights to explain what people are entitled to do in the event of a problem. As with subsection (2)(c) in amendment No. 44, the courts may consider the statement of inherent risk more favourably. Given the hon. Gentleman's concerns, however, I am prepared to table an amendment to remove subsection (2)(d) in the amendment on Report if it is passed. Our ambition is not to promote more litigation; indeed, we agree with the hon. Gentleman that there is merit in trying to reduce it.
The remaining subsections in amendment No. 64 aim to cover three issues: the need to obey the provider; the need for parents or guardians to explain the risks to the children; and the principle of shared responsibility. I shall refer to the second point first, as I agree with it in principle. It seems perfectly sensible that parents or guardians should explain risk to their children. I have no reservations about that; indeed, it
Column Number: 75could be a useful addition to a statement of inherent risk. I do, however, have serious concerns about the other points.
It is not right that a participant should necessarily obey the provider's instructions in every case. The problem with law is how to construct it. First, providers will not take the right decision every time, and we must allow for that. Let us imagine an adventurous event in which the provider who is leading it suggests, for example, that a particular way of tying up a rope is the safest way. If an experienced participant disagrees, it might be sensible for them to be able to discuss the matter. I am concerned that children, having been told that they have to obey, may feel under pressure to do more than they feel able to do. That is the most serious risk. We need to leave a participant with a right to say, ''Actually, I can't do that.'' I know that the hon. Member for Canterbury intends to avoid unsafe and foolish practices: for example, disobeying the rules and basic safety regulations established by the provider. That is a sensible ambition. However, I am concerned that requiring participants to obey might, in practice, require them to obey an instruction that they do not feel capable of carrying out. We need to make sure that people can say, ''This is the limit of my ability; I cannot do that, and I am not going to.''
Mr. Brazier: I understand the Minister's point exactly, and it is a point that a court could perfectly well take into account. However, the problem is the way in which the courts are interpreting the law at the moment. No account seems to be taken of the normal requirement to obey.
The case that I mentioned earlier involved volunteers causing an accident as a result of directly disobeying orders given two minutes before. The school ski-ing trip case was eventually overturned in the Court of Appeal after five years and huge expense. That all turned on the assumption that the teachers should have assumed that the boy was going to go on refusing to do as he was told and behaving like an idiot.
Fiona Mactaggart: As I read the ski-ing case in Llandudno, the company owed a duty of care to give an oral warning, but the failure to do so did not cause an accident and they did not get away with it.
I think that the issue is covered. The Court of Appeal and House of Lords judgments are quite clear on the principle of shared responsibility. The issue is covered under the present law. The hon. Gentleman cites lower court cases that have later been resolved in a senior court, where that principle of shared responsibility has been clearly stated. Such cases are one of the things that have ended us up with legislation that deals with something that is best dealt with in another way, and on which progress is currently being made in another way.
Mr. Brazier: Will the Minister give way one more time?
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Fiona Mactaggart: I am trying hard to make progress. The hon. Gentleman will be aware that at our last sitting I was constantly interrupted; as a result, Committee members felt frustrated. I am not trying to silence the hon. Gentleman, but to make progress. I know that there is eagerness to get through this Bill more speedily than we have heretofore.
Amendment No. 4 would reduce bureaucracy by ensuring that statements of inherent risk should contain the types of risk associated with an activity, rather than an exhaustive list. I am happy with that principle. However, participants must understand and accept the risks associated with the activities; the description should not be too general.
This is a question of the obligation that the provider owes the participant. The provider must not seek to use the statement to create a blanket exemption. Furthermore, I am concerned that the amendment might risk cases being brought to establish what is covered by this type of risk. We are all united in a desire to reduce litigation.
Amendment No. 66 covers two points, both of which are aimed at reducing bureaucracy. I am content with the principle, but, again, I have concerns about the detail. Hon. Members all want to fix a problem. We have a united view that there is a problem that needs to be fixed; I speak as the person who was keen to encourage the Government to allow the Bill to make progress this far. However, the more the issue is considered, the more it appears that the devil is in the detail, which we need to get right. My main concern about amendment No. 66 is that participants have to understand the risks associated with particular activities, and covering several activities and classes of risk on a statement might be confusing. For example, I would not refer to a school trip as exceptional. Such trips are covered by a wealth of guidance and instructions.
The statement of inherent risk should not be a static document, but one of the amendments might cause it to be. It needs to be updated to reflect new circumstances, safety measures or risks that become apparent. It is not right that people should sign one every time they turn up to Scouts or Guides, but it is right that we operate a practice that draws people's attention to the kinds of risk that can be involved in an activity, and properly informs them about those risks. The question is whether that is best done by a statement of inherent risk. The conclusion to which I came, having discussed this at length with the hon. Member for Canterbury, was that it is probably not. There is a problem, and it needs to be fixed partly by changing the perceptions of litigation, partly by a safety culture, and partly by better information and provision for both volunteers and participants.
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