Promotion of Volunteering Bill

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Mr. Tim Boswell (Daventry) (Con): Will the Minister give way?

Fiona Mactaggart: I am going to keep on resisting the amendments of the hon. Member for Canterbury, if I may. My amendments are designed to ensure that proper risk assessment and management procedures are followed for every activity. It is only by building a

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safety culture that we will prevent the accidents and consequences that this Bill is designed to address. If we want the courts to understand the statement of inherent risk and to avoid breaching human rights, we must ensure that they are balanced documents that cover both responsibilities and rights. My amendments are designed to strike that balance, but I do not believe that that is what the promoter's amendments do.

Mr. Boswell: I am pleased to welcome you to the Chair, Mr. Amess. I have followed the discussion with some interest, and I defer to the expertise of my hon. Friend the Member for Canterbury to respond to the amendments generally. I just want to make a point about the saving clause that no statement of inherent risk would preclude any claim for negligence or breach of statutory duty where it would be manifestly unreasonable not to do so. That does not prevent people from litigating, but suggests that if circumstances have materially changed, courts could take that into account.

The hon. Lady is perhaps right to raise two points, although they are not necessarily convincing. The first point relates to obedience of what might be termed a legitimate authority. Again, my hon. Friend the Member for Canterbury might be able to inform the Committee from his experience in military discipline. There is an important distinction between normally obeying an order, which is what one is meant to do, and obeying an order of a senior officer who has gone off his head or something similar. That is probably already reflected satisfactorily in both law and practice.

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The second point relates to when the risk has changed. We all agree that we do not want people to fill in a form every time they undertake any activity. On the other hand, the risk might have moved away. Signing or presenting a certificate only once should not be treated as a carte blanche for anything that might happen in future. I may have overlooked something in the drafting of the Bill or the amendments, but it seems possible that the matter could further be dealt with. It could be said that if the inherent risk has, to use my shorthand, moved away or changed its character, and either the presenter of the certificate is aware that it is no longer appropriate or it can be shown that they should be aware, that certificate should be amended and, by implication, the previous one should be withdrawn.

I do not feel intensely about that, because my hon. Friend the Member for Canterbury is making a powerful point and we need to get the protective certificates into play. However, I concede to the Minister that they must be as appropriate as possible and that they are in no sense a blank cheque allowing anybody to do something foolish or something that does not recognise the changing facts of the situation.

Andrew Bennett (Denton and Reddish) (Lab): I can make my points about the amendments, rather than wait for the clause stand part debate.

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I look with some concern at the amendments and almost at the whole concept of the statement of inherent risk. That idea would have totally wrecked my childhood. Fortunately, it cannot be given back.

Mr. Frank Dobson (Holborn and St. Pancras) (Lab): A second childhood?

Andrew Bennett: Yes. It is getting there rapidly.

When I first joined my scout group, if it had sent to my parents details of the inherent risk of going out on bikes, hitchhiking, canoeing, fell walking, camping, potholing or rock climbing, I am pretty certain that my mum would have said, ''No way'', or a phrase that was more appropriate in that distant age. It simply would not have been on. The alternative would have been for the scout group to send out a separate letter each time we started to approach doing one or two of those activities.

The trouble is that there was a great ambiguity about whether we did most of those things as scouts or merely as young people. There was a scout leader, who was much not older than some of the older people in the group when I first started, and he sometimes came with us. In such cases, one could say that the activities were scout activities and the statement would have been relevant. If he was not available to come, it did not stop us going; we simply went. All that would have happened in such situations is that we would have had to tell him not to come, because he would have had some responsibility. If he did not come, a much younger group of people would have had to take responsibility for themselves.

How did we go out canoeing for the first time? One member of the group had made up a kit of a canoe and we did not have much of a clue how to use it. We knew nothing about canoe safety and there were no lifejackets. People took the trouble to get hold of the right information and we very quickly learned. One could say that the scout group should have exercised more supervision over us. However, I am confident that if it had started to say, ''Oh no, you cannot do that without this, that and the other'', we would have simply stopped undertaking such activities as part of the scout group and done so as individuals.

On one occasion when we went out potholing, we left the scoutmaster behind, because he had considerable worries about one of the activities that we did. To get into the pothole, a stream had to be diverted. That involved the younger members throwing the water across a channel, which is perfectly easy to do, but it relied on them to keep doing it while the older people were down the pothole. I can understand why the scoutmaster did not want to take responsibility for that activity. No one ever came to any harm, but the inherent risk statement to cover that situation would have been a nightmare to write.

We need to think carefully about the statement. First, is it practical? Secondly, will it mean that an awful lot of people are refused permission by their parents to participate in activities because the statement puts them off? Does it mean that many people who might have been supervised by someone who had common sense and training in an activity will

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simply do such things on their own? I plead with the hon. Member for Canterbury to think carefully about the statement and about whether it will encourage people to go out and enjoy adventure activities or make it much harder for them to do so.

Mr. Brazier: We have had a good short debate, and I shall return to that final powerful point at the end of my remarks, because it is extremely germane.

I thought that every member of the Committee had received a letter from the Joint Committee on Human Rights, but I understand that only the Minister and I have done so. If any Committee member wants to see a copy, I will happily provide one later. The Joint Committee objected to some clauses, which were removed. Then, however, out of the blue, it raised various human rights objections. We asked a human rights QC to check the concept of the statement of inherent risk, and he passed it subject only to its not applying to compulsory activities. We have asked him to have a second look at the detail of the Bill. When I receive his comments, I shall share them with the Committee.

I am grateful for the measured way in which the Minister presented her points and I am happy to accept all but one of her amendments. The one that I cannot accept, amendment No. 44, is crucial, and I have tabled an alternative—amendment No. 64. She generously said that she would be happy to drop proposed subsection (2)(d), which is about including

    ''details of the methods of seeking compensation in the event of injury or harm as a result of the activity.''

However, the problem lies with proposed subsection (2)(a), which concerns setting out

    ''the measures which the person presenting the Statement, and (if that person is acting in his capacity as an employee) the voluntary organisation or volunteering body employing him, has taken and intends to take during the course of the activity to minimise the risks set out in the Statement;''.

In the interests of balance, I thought that we might be able to accept that provision, which is why I tabled something similar. However, my legal advice is absolutely overwhelming. It is the legal counterpart of the points that have been made so effectively by the hon. Member for Denton and Reddish (Andrew Bennett), and it comes not only from the lawyer who has assisted me throughout my introducing the Bill, who had a hand in drafting previous charities Bills, but from both the Scouts and the Girl Guides. Let me reassure the hon. Gentleman that that advice is to support the concept of the certificate of inherent risk. The concept was produced and put to me by the Campaign for Adventure, which brings together the Youth Hostels Association, the YMCA, the Duke of Edinburgh award scheme and a host of others.

We must not get into long, detailed lists of all the measures taken. It will simply give the lawyers a field day in subsequent litigation if they can base a case on proving that a scout leader had a heavy cold or agreed to take 10 people out on a hill when the guidelines said that he should eight people, but he did not want to leave two behind. While I am happy to accept the

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Minister's point about including qualifications, which is reflected in my amendment No. 64, I am not happy with the idea that there should be a list of measures.

During our discussions on earlier clauses, the Minister made a number of what some of us felt were Second Reading points about the viability of the certificate. As we have reached the key part of clause 2, which most concerns the issue, let me make a couple of general points to remind us where we are. The hon. Member for Denton and Reddish got to the heart of the matter: the more we undermine structured activity, the more, in theory—I do not believe that it applies in practice, for a reason that I shall come to—we make that activity fractionally safer but reduce the number of people willing to organise it and, crucially, the more youngsters we drive out of it. Some of those youngsters end up becoming couch potatoes—this is the third worst country in the world for obesity—and the more adventurous ones, such as the hon. Gentleman, go out and find their own unstructured activities, which are much more dangerous.

We are talking not about removing the ability to sue, but about limiting it. I do not accept that limiting it will have a negative effect on safety, because safety derives from the quality and training of voluntary organisations, and from the pride that they had long before all this nonsensical litigation started in the last 11 or 12 years. We have some of the best safety records anywhere in the world, and there are few countries where parachuting and sailing—two pursuits that I know well—are as safe.

All those things are backed by one of the most comprehensive criminal law systems, which the Bill does not touch. In the furthest corner of the world, there is a country with an English-speaking jurisdiction that allows no litigation in sporting cases—New Zealand. It, too, has extremely good safety standards, but those who do have a serious accident can apply for compensation from the Government. New Zealand's criminal law system is similar to ours, but the safety system is driven by the high quality and high morale of sports providers, which have developed over generations and are backed by the criminal law system—there is no need for a litigious environment. I do not seek to abolish litigation; the certificates would simply raise the bar—not to some unreasonable level, but to where it was a generation ago.

I was a little puzzled by the Minister's mention of a skiing case, and I am not sure that we are talking about the same one. The 16-year-old in the Woodbridge school case behaved outrageously on the skiing slope and twice had to be reproved. The Court of Appeal judgment, which was reached only after five years of expensive and difficult litigation, is so narrowly drawn that it does not offer much hope. The kayak case was, I think, settled out of court for a substantial sum. I shall not describe the events again, but everything turned on the fact that two youngsters deliberately disobeyed an instruction that they had been given by a volunteer who had been posted at a difficult point on the waterway for precisely that purpose. He told them not to overtake, but they did so two minutes later,

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causing an accident in which there was a lot of damage. He was found liable because he should have taken account of the fact that they might have taken no notice of what he said. That is nonsense. In that respect, I am grateful to the Minister who, in an earlier group of amendments, tabled a very good, structured amendment to tackle different age groups in different ways. That is what I was groping towards, and I am grateful to her officials for their helpful drafting.

Against that background, we could settle for amendment No. 64 rather than amendment No. 44. Indeed, discussions with the Scouts and, in particular, the Girl Guides—not, I confess, about the wording, but about the principle of drawing up a long list—suggest that they feel that amendment No. 44 would make the situation worse.

Amendment No. 4 echoes the same point. Just as we do not want to provide long lists of safety precautions, for the reasons that I set out, we do not expect to provide long lists of the risks. That goes back to the point made by the hon. Member for Denton and Reddish. People will be told of such things when their sons join a rugby club. I was very proud to take my twin sons along to Whitstable rugby club, which is a fine organisation. At the moment, people sign a certificate at most rugby clubs, committing themselves to the rules of the game. Some clubs insist that people also sign something saying that they will never sue the club, although they do not realise that such documents have no legal validity, and Whitstable does not ask for one. In future, the certificate that the Rugby Football Union would, I am certain, draw up for their clubs would say a few other things.

 
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