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We must not be swayed by traditional allegiances to organisations such as trade unions. The unions have done, and continue to do, a tremendous job. They have
brought test cases that have radically changed the law and have benefited working people—but at this stage, given recent events, we must ensure that claimants are at the centre of our concern. Where trade unions act as claims handlers—as they do; let us not kid ourselves—they must not be exempted. I am determined that the code of practice should make that clear. People who have been ripped off in north Nottinghamshire and other coalfield communities will be astonished and dismayed if a loophole is left open so that illegitimate, immoral activities can be undertaken by trade unions acting as claims handlers.
Another aspect that the code of practice will have to cover is that of a trade union acting for a member and his or her close family and for a wider group of people. Trade unions sometimes act for groups of people far extended from their traditional activities. For example, the south Wales branch of the National Association of Colliery Overmen, Deputies and Shotfirers acts for people in the Kent coalfield who are not members of that organisation. The code of practice must make it clear that there is a difference between acting for members and acting for a wider audience.
It is important that the code of practice is discussed with the TUC, which will, I am sure, be positive and helpful. It should not act as a sleeping watchdog but ensure that it intervenes heavily to stamp out abuse. Of course, some trade unions are not, and never will be, affiliated to the TUC. The code of practice must make it absolutely clear that trade unions, whether affiliated or not, operate legitimately within it.
Mr. Heald: As the hon. Gentleman knows, I am concerned about this point as well. Solicitors, for example, are also exempted but they are regulated in this field by the Law Society and, soon, by another regulator. The problem with the unions is that they have no regulator in this field. He will know that there have been some dreadful examples of union misbehaviour in this respect. Is he really satisfied with this exemption?
Paddy Tipping: I am making it clear to the Minister that I will be satisfied only if the secondary legislation and the code of practice really do the job for which the hon. Gentleman asks. When trade unions act as claims handlers, they must be treated as claims handlers. I do not, in principle, object to unions charging a reward fee for a successful claim. I know the benefit that will result if the money is used by the trade union movement for other activities, such as taking on test cases. However, I believe that it must be absolutely clear that the claimant understood the nature of the contract when he signed it. It is obvious from the whole claims scenario that that has not been happening.
The Minister is right, in the short term, to want to regulate claims handlers through the Department, but I hope that that is an interim solution. I should like there to be a regulatory framework separate from the Department. As others have said, a new legal services board will provide useful opportunities, but in the long term I should like to see more independence.
A number of my hon. Friends have mentioned the Barker case and asbestosis. I am impressed by what the Minister has said publicly today and privately to
colleagues who have pressed her on the issue: that the Government will try to establish a process to resolve it. This is a matter of life and death. It is also a matter of simple fairness and simple justice. I cannot understand the House of Lords judgment, and I hope that we will act with equity and fairness to resolve the issue. Although I probably do not need to do so, I seek an assurance from the Minister that over the next few days, and certainly in the next fortnight, we shall be able to engage in discussions about the process or mechanism that is required.
I mentioned pleural plaque earlier. I accept that the litigation is now further down the road. The Court of Appeal has put many hundreds of cases on hold and the claimants are waiting for them to go to the House of Lords, but I know people who are suffering with pleural plaque, I know the history of payment over 20 years, and I know that—as with the Barker case—the law is changing fundamentally for working people. I hope that we will act with social justice again to resolve the cases of people who, through no fault of their own and through the fault of their employers, have been disadvantaged and put at risk.
This is a good Bill, which has been improved in the other place. It is concerned with the essential elements of looking after claimants and workers. I am conscious, however, that we must work hard to improve it even more. We are heading in the right direction. As we say, much has been achieved, but much more needs to be done.
3.48 pm
Mr. Julian Brazier (Canterbury) (Con): I welcome the Bill, especially clauses 1 and 2. I too congratulate Lord Hunt on his handling of the Bill, and in particular on his success in winning the vote on the splendid clause 2; and I congratulate the Government on their graciousness in accepting it.
I shall make four basic points. First, I shall explain how adventure training and certain types of sport are being severely damaged by the current culture. Secondly, I shall try to make it clear that this is not just a question of perception; it is based on a string of court cases. Thirdly, I shall touch briefly on what society is in danger of losing. I shall end with a few ideas for strengthening the Bill.
When I introduced my private Member’s Bill, which has been mentioned in both Houses in this context, I was touched by some of the letters of support that I received. The Children’s Play Council wrote:
“I have read with interest about your Private Members Bill on volunteering and risk taking...it is very common for playgrounds to be closed or removed because of local authorities liability fears”.
The Youth Hostels Association wrote:
“YHA welcomes the private members bill”.
“I am happy to add the full support of Youthsport...As a training project for volunteers across London, Middlesex and Surrey we have been acutely aware of the growing trend towards litigation”.
After my private Member’s Bill was blocked, colleagues and I set up the all-party group on adventure and recreation in society. I am particularly glad that my co-chairmen, the hon. Members for
Sittingbourne and Sheppey (Derek Wyatt) and for Montgomeryshire (Lembit Öpik), are present. We campaigned for fresh legislation, with the support of the Campaign for Adventure—whose remarkable director, Ian Lewis, has done much to keep us informed—and we are delighted that the Government have introduced the Bill.
The truth is that a huge amount of damage is being caused. In 2003, the Central Council of Physical Recreation and Sport England conducted the largest survey ever in the field of volunteering in sport and outdoor activities. It listed eight factors that were damaging volunteering, top of which came
“risk, fear of blame and the threat of litigation.”
More recently, the Scout Association carried out a survey of 1,100 scout masters. It stated that
“69 per cent. agree or strongly agree that the recruitment of new volunteers is made more difficult because of fears of being sued...a staggering 92 per cent. agree or strongly agree that risk-aversion is affecting the range and nature of activities being offered to young people”,
at a time when 30,000 youngsters cannot get into the scouts because they do not have enough scout masters, and when almost twice that number are waiting to join the girl guides for the same reason.
That leads me to my second point. Why does that state of affairs exist, or is it just a perception—an urban myth? I believe that it is a reality, given the large number of cases that have been fed to me. We sent a dossier of them to Baroness Ashton, who was very courteous about meeting us; however, we were told that, because her Department did not have law reports on those cases, even though we had given the dates, the courts and the names of the judges, it could not comment on them.
I then read the proceedings on the Bill in another place. Lord Goodhart, speaking for some of the Liberal Democrats—although not, it seems, I am relieved to hear, for the Liberal Democrat Front Benchers in the Commons—said:
“There are, of course, reports of cases where damages have been awarded to people who are the authors of their own misfortunes. It is difficult to find authentic texts for these judgments and I suspect that some of them are urban myths. Some of them are reported; some were decided before the law was clarified in the Tomlinson case; and some are simply bad decisions, which are unavoidable in any legal system.”—[ Official Report, House of Lords; 7 March 2006, Vol. 679, c.647. ]
The question for Parliament is: is a pattern developing, or not?
Six days after Lord Goodhart’s speech, and while the Bill was still before another place, a court case took place in Manchester. It was one of many cases inflicted on the Scouts while the Bill was being debated in the Lords. The Scouts’ legal adviser said:
“I attach a note of a recent case in which the Scout Association lost following an injury to a brownie attending a scout panto...chairs were set out in the village hall and the brownie was injured on allegedly sharp piece of metal protruding from one of the chairs...Apart from individually inspecting every chair with considerable resource implications endangering the running of such an event it is hard to see what more the group could have done. To add insult to injury the Judge awarded the claimant twice our counsel’s valuation of the claim and 20 per cent. more than the claimant asked for!”
It cost the association £15,000.
Mr. Beith: Does the hon. Gentleman think that that claim would have failed if clause 1 had been enforced?
Mr. Brazier: Yes, and I will explain why in a moment. I am clear that clause 1 does change the law.
Judge Tetlow presided over the Manchester case that I mentioned. In summing up, he said:
“It follows there was a jagged edge which should not have been present in an area likely to be inhabited by children. Something had gone wrong. I do not think the defendant can avail itself by relying on the licensing officer’s inspection. The defendant set out the chairs and was in a position to remove any chair that was broken or defective. The system obviously went wrong for this chair to slip through the net.” Actually, the chair was never found but, on the balance of probabilities, it was decided that a defective chair was the cause.
“It presented a reasonably foreseeable risk of injury and should have been removed. I therefore find that the defendant failed to take reasonable steps to ensure the reasonable safety of the claimant.”
The point is that these chairs and the premises had been checked by the scoutmasters, and the licensing officer from the council had done a safety check, too. In the end, the judge’s view was that an additional and burdensome extra check should have been carried out; a check of every chair.
There could not be a clearer example of something to which clause 1 would have applied. The clause asks whether or not, by taking precautions against a risk, we could prevent a desirable activity from being undertaken or, more importantly, whether we could discourage persons from undertaking functions. The one thing about which the Scout Association, the Girl Guides and all the other groups to whom we have talked are clear is that anyone who has been hauled through a case like this as a scoutmaster, guide leader or whatever almost invariably leaves the Scouts or Guides and so do a lot of their friends.
David Howarth: First, for Lord Goodhart’s sake, will the hon. Gentleman place in the Library the documentation he has about the case so that, at a later stage, we can all read what the judge said in full? Obviously there is no time in a Second Reading debate to go through the whole judgment.
The test in clause 1 is the existing law; the precaution that it is said the defendant should have taken is tested against its cost and its benefits. There is no change brought in by clause 1 that would affect the case that he has mentioned. The problem is the way in which it was applied by the judge, but that cannot be changed by having a new statute.
Mr. Brazier:
I half agree with the hon. Gentleman. Without exception, all the cases have come from the last 12 or 13 years; not a single case arose before 1993, and we have had a flood since. There has been a change of interpretation that has had nothing to do with anything that Parliament has done. That is true, but crucially, by spelling the point out—we can get into semantics as to whether it is a change in the law or not—there is a real chance that the lower courts will take this on board. Tomlinson was an excellent judgment but it dealt with a rather narrow point about an individual who was behaving extremely recklessly. I
hope that this measure will embrace a wider range of cases, as I have tried to describe.
Lembit Öpik: Does the hon. Gentleman agree that it is evident that the individuals in the case he mentioned were not protected by the law? Something went wrong; the courts ignored all the guidance given to them. Some of my hon. Friends here do not completely agree with clause 1, but in Committee we must recognise that there is an imperative to put some legal protection in place to prevent the kind of outrage that the hon. Gentleman has just described.
Let me give details of a second case, from a large dossier; the Gaping Gill incident. In summary, a scout troop visited a beauty spot and some parents were invited to come along as additional supervisors. On the way, a little boy asked a scoutmaster if he could investigate a cave in the side of a hill that they had passed. The scoutmaster said no, that it was dangerous and explained why. The boy asked his father, who said yes, took him to the entrance and gave him a lighter. The poor little boy walked over a 300 ft cliff to his death. His elder brother was serving in the troop.
Two years later, when the boy’s elder brother left the troop, the father sued the Scout Association. The scoutmaster was declared to be negligent in a British court of law on the grounds that having spotted an “urban parent”—a parent from an urban environment—the scoutmaster should have taken more active steps to prevent the boy from getting into the cave because he could not be expected to understand the danger.
Let me make it clear that not only the Scouts furnished us with cases. We have had them from the guides, the mountaineering community and the Royal Yachting Association, as well as one from a school.
We must understand how much is at stake and how much damage is being done to our country. The Duke of Edinburgh, who is the patron of the Campaign for Adventure, has said in public:
“The danger for society is not that people take risks, it is that they do not take risks because they see risk as entirely negative rather than the very positive thing it really can be and most often is.”
By coincidence, almost the same month, Lancashire education advisers issued a statement:
“Many Duke of Edinburgh Award Schemes and other providers of diverse educational opportunities are having trouble recruiting”
“due to fear of unfair litigation.”
Sir Chris Bonington, who addressed the inaugural meeting of the all-party group, said:
“A sense of adventure is vital for children growing up and society as a whole.”
If young people are not offered opportunities to take risks and to learn to expand their horizons in a properly organised and structured environment, the less enterprising will turn into couch potatoes while the more enterprising will get out and make their own opportunities for risk. We see that in joy riding, people playing chicken on railway lines and a string of other unhappy events.
I rather agree with the comments made by the right hon. Member for Berwick-upon-Tweed (Mr. Beith) on balancing risk. Those are the risks we have to balance
with the damage we are doing to voluntary organisations, and indeed professional ones, that provide adventure training and sport.
Let me spend my last couple of minutes looking at ways in which we could strengthen the Bill. I want to make four points, two of which, funnily enough, were put forward by the Field Studies Council. First, there is perhaps something to be said—this is the only part of the speech made by the hon. Member for Hendon (Mr. Dismore) that I agreed with—for a clearer definition of “desirable activities”. Lord Hunt made an excellent stab at this.
The basic point, if the House will forgive me for repeating it again, is that there is no contradiction between saying, on the one hand, that there is no compensation culture and accepting, on the other, that in this specific area—a tiny proportion of all cases, involving adventure training and sport—real damage is being done. The American experience proves it. America is the worst country in the world for a compensation culture, but there is specific protection for sport and adventure training in the law of many American states and a much higher burden of proof. I would be happy to have provision restricted to sport, adventure training, physical recreation and educational purposes, or something similar. I leave it to others wiser than me to draft the clause.
My second point is that, having restricted the provision, we really should say “shall” rather than “may”. I entirely understand the objection to that made by the Minister in the courteous hearing that she gave us, but that objection would surely be coped with if we had a more restrictive definition of “desirable activities”. As time is short, I shall move on from that point.
The third issue concerns landowners and farmers; there was a close vote in another place on it. The plain fact is that all organisations such as the Scouts and the Guides, as well as those that provide for schools that want to visit farms, can operate only with the good will of the farming community. I cannot see why—this does not have to follow the exact wording promoted in the House of Lords—we cannot have an element of clause 1, or indeed an extra clause, that specifically provides comparable comfort for those who make their land available for such activities.
The fourth and final point was also made by my hon. Friend the Member for North-East Hertfordshire (Mr. Heald). We must consider the possibility of including a specific measure to address the issue of those who disobey instructions or behave manifestly recklessly. As my hon. Friend pointed out, that is important for people who run leisure parks and provide opportunities for youngsters to do adventurous things professionally, but it is even more so for those who do so in a voluntary context. If somebody deliberately sets out to disobey an instruction and brings a serious accident on themselves, that should be a stronger defence than it appears to be now, as the Gaping Gill incident all too sadly illustrates. If somebody is drunk or drugged, the same point should apply. I am glad that the Field Studies Council supports that move.
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