Social Action, Responsibility and Heroism Bill
The Committee consisted of the following Members:
Chairs: Mr Joe Benton , †Mr Adrian Sanders
Browne, Mr Jeremy (Taunton Deane) (LD)
Carmichael, Neil (Stroud) (Con)
de Bois, Nick (Enfield North) (Con)
† Evans, Chris (Islwyn) (Lab/Co-op)
† Glass, Pat (North West Durham) (Lab)
Hart, Simon (Carmarthen West and South Pembrokeshire) (Con)
Jarvis, Dan (Barnsley Central) (Lab)
† Jenrick, Robert (Newark) (Con)
† Metcalfe, Stephen (South Basildon and East Thurrock) (Con)
† Morris, Grahame M. (Easington) (Lab)
Paisley, Ian (North Antrim) (DUP)
† Rutley, David (Macclesfield) (Con)
† Slaughter, Mr Andy (Hammersmith) (Lab)
Stevenson, John (Carlisle) (Con)
Turner, Karl (Kingston upon Hull East) (Lab)
† Vara, Mr Shailesh (Parliamentary Under-Secretary of State for Justice)
† Wallace, Mr Ben (Wyre and Preston North) (Con)
† Williamson, Chris (Derby North) (Lab)
Matthew Hamlyn, Committee Clerk
† attended the Committee
Witnesses
Fraser Whitehead, Law Society of England and Wales
Dr Justin Davies Smith CBE, Executive Director for Volunteering (National Council for Voluntary Organisations)
Public Bill Committee
Thursday 4 September 2014
(Morning)
[Mr Adrian Sanders in the Chair]
Social Action, Responsibility and Heroism Bill
12 noon
The Chair: Before we begin, I have a couple of preliminary announcements. Will people please switch any electronic devices to silent? I do not see anyone with tea and office, but tea and coffee are not allowed during sittings. The Committee will first be asked to consider the programme motion, on which debate is limited to half an hour. We will then consider a motion to report written evidence and then a motion to permit the Committee to deliberate in private in advance of the oral evidence session. In view of the time available, I hope that we can take those matters formally. Assuming agreement, we will then move into private session to agree questions, and then witnesses and members of the public will be invited back into the room and our oral evidence session will begin.
That—
(1) the Committee shall (in addition to its first meeting at 12 noon on Thursday 4 September) meet—
(a) at 2.00 pm on Thursday 4 September;
(b) at 8.55 am and 2.00 pm on Tuesday 9 September;
(c) at 8.55 am and 2.00 pm on Tuesday 14 October;
(2) the Committee shall hear oral evidence in accordance with the following Table:
tABLE
(3) the proceedings shall (so far as not previously concluded) be brought to a conclusion at 5.00 pm on Tuesday 14 October —(Mr Vara.)
That, subject to the discretion of the Chair, any written evidence received by the Committee shall be reported to the House for publication—(Mr Vara.)
That, at this and any subsequent meeting at which oral evidence to be heard, the Committee shall sit in private until the witnesses are admitted—(Mr Vara.)
12.2 pm
The Committee deliberated in private.
Examination of Witnesses
Fraser Whitehead gave evidence.
12.3 pm
The Chair: Before calling the first Member to ask a question, I remind Members that questions should be limited to matters within the scope of the Bill and that we must stick to the timings in the programme motion agreed by the Committee. For this session, we have until 12.30 pm only. Will the witness please introduce himself for the record?
Fraser Whitehead: I am Fraser Whitehead, representing the Law Society of England and Wales.
Q 1 Mr Andy Slaughter (Hammersmith) (Lab): I do not know whether Mr Whitehead wants to make any sort of opening statement, but perhaps I can encourage him to do so by asking a general question. I have heard or read various views on the Bill that can be summarised into three groups. First, it does nothing. A senior QC wrote:
“The Lord Chancellor is proposing an Act of Parliament which is not intended to change the law… If this bill is enacted I do not believe it will make a jot of difference to the way the courts determine cases involving negligence or breach of statutory duty.”
Secondly, it is confusing because it sends out signals, or sets up potential processes, which—while not adding much—are bureaucratic and add other layers of decision making, even if they will not alter the decision. Thirdly, it is pernicious in some ways, because it is seeking, however clumsily, either to restrict meritorious claims being brought—to put them off—or to give bogus defences to those claims. Which of those views best fits the Law Society’s view? Or do you have a fourth view?
Fraser Whitehead: The Law Society’s position is that it is an unnecessary Bill, but you have to follow through what the consequences would be of bringing in a piece of legislation that, on the face of it, appeared to be unnecessary within the law as it presently stands. I have to explain to you briefly; forgive me if it is a simple guide to the law as it presently is. I think—it is a personal view—that, notwithstanding the fact that it may be without valuable purpose, there is validity in the anxiety of those who say it has the potential to be used, and there is probability that it would be used, in a way which was probably contrary to the expectations of those who propose it.
In a sense, it is a plausible Bill. The very title of the Bill shows you the objective and the sincerity behind it. The problem is, when you put what is proposed in its brief statutory form into what is already a fairly complex area of law, the consequences are potentially quite
serious. I think it is a possibility—I put it no higher than that, because I show respect to the drafters—that they have not fully appreciated the full range of the extent of this and how far it goes beyond those areas where politicians and others have expressed anxiety about social responsibility issues.The purpose of the law of statutory duty and negligence is primarily a deterrent. It creates responsibilities of two different types. One is the common law right, an ancient tradition of the law of England and Wales, where there is fluidity and discretion built into the law to enable it to develop and evolve as society itself develops and evolves. The other is the legislative provision—Parliament-made law—which is the statutory duty, which has the same effect. It creates duties and responsibilities, but does so in a way that is rigid and without discretion, and it does that because parliamentarians have perceived that these are areas of sufficient importance that, within the framework of deterrents in which the two duties coexist, the areas that these particularly statutory duties attack are simply too important to be left to fluidity and discretion, because the consequences of breaches of them are more serious.
It is important to understand that this framework of statutory duty and negligence in the law of England and Wales goes way beyond some of the areas that people might identify with—particularly the world of personal injury—and includes, for example, the statutory duty owed by company directors in respect of their company and in relation to the position of creditors; the statutory duties involving governors in relation to children with special needs and dealing with complaints from parents and teachers; the statutory duties of local authorities in relation to disturbance of businesses when they are conducting digging works at night; the statutory duties of occupiers in relation to their premises; the statutory duties of landlords in relation to the condition of property; and many others, such as those of utility companies in respect of competitive prices. These are statutory duties where there is a duty of care and all of these will be touched on by this Bill.
Q 2 Mr Slaughter: You say in your comments in our brief that you think that the Bill is poorly drafted. Could you say a little bit more about that?
Fraser Whitehead: It is poorly drafted. It will have massive unintended consequences, and the potential for it to be used in a way that was not intended by those who drafted it is significant. I would like to think that one could amend it, but part of the problem is that it is in an unusual form for a Bill that deals with fundamental law, in that it is laudably succinct. I generally support the use of plain English and shortness in legislation, which has become immensely complicated, but the Bill is far too short and its consequences have not been thought through.
The Bill is probably unamendable; at least it would not be recognisable as the Bill it presently is if it were amended to take into account all the changes that need to be made. I say that as a lawyer whose present area of practice is business and specialist litigation. I am one of the lawyers currently dealing with the litigation against banks involving interest rate swaps, where the primary cause of action of the victims—the small businesses that have been affected—is either statutory duties imposed by the regulator or the law of negligent misrepresentation. The idea of the banks running a defence that they are engaged in social activity or acting in the interest of
society in the context of that litigation is horrific, but I cannot imagine the banks’ lawyers giving up the opportunity to run that kind of argument.Q 3 Mr Slaughter: Could you be specific about each of the three operative clauses—2, 3 and 4? How does clause 2, which essentially pertains to volunteering, differ from section 1 of the Compensation Act 2006, and does it achieve its purpose of encouraging volunteering? Will clause 3, which has attracted the most attention, have any harmful or beneficial effects on the relationship between employers and employees? What do you think the effect of clause 4 will be on people who intervene in emergency situations? Clause 4 is the worst drafted of all the clauses, and it seems unclear, for both the emergency services and volunteer interveners, where the balance of risk will be displaced to.
Fraser Whitehead: I will happily look at those clauses and try to give some examples. I will start in reverse order, because clause 4 is in some ways the easiest. Based on comments made by politicians, the object of clause 4 is the clearest.
It is important to remember that common law is fluid—I use that expression carefully—because duties owed by different classes of people in similar situations are different. One of the simplest and most often quoted examples is the difference between a solicitor who advises a client about their legal rights and fails to warn them of limitation issues, and a trade union official who warns a member about their legal rights and fails to advise them about certain matters. The duty of care owed by a reasonably competent solicitor and a reasonably competent trade union official are different. In every situation, the court analyses the surrounding circumstances to see how the basic principle of the duty of care fits into the surrounding circumstances.
In a situation of heroism, something that would normally be considered by the court in the overall circumstances is whether there was an opportunity to reflect, in the same way that an employer, in respect of a breach of duty, is required to carry out risk assessments and would be given a reasonable period of time to react to a risk assessment before being held to be culpable for failing to implement it. The period of a heroic reaction would be judged much more shortly, so it would be a less influential thing.
What most troubles me about clause 4 is why the word “heroism” is used at all. When it states,
“when the person was acting heroically by intervening in an emergency to assist an individual in danger and without regard to the person’s own safety”,
why has the word “heroically” been added? Why does it not simply say,
“when the person was acting…by intervening in an emergency to assist an individual in danger and without regard to the person’s own safety”?
What does the word “heroically” add? You will know that the view of the principles of interpretation is that, if words are inserted by parliamentarians, they are there for a reason. I have struggled with this.
Unlike clauses 2 and 3, it is very clear in clause 4 that we are talking about the negligent act of an individual rather than a person in law, which includes corporations, companies and partnerships. Disregard to your own safety is primarily a personal responsibility. This must be talking about a person. It is worth remembering—I think this is sometimes lost by other commentators—that
the Bill applies when a court is considering a claim that a person was negligent. The person we are talking about is the wrongdoer, so clause 4 is looking at the wrongdoer who has acted heroically. You have to assume that something has gone wrong in the act of heroism—they have done something that has caused an injury or broken a statutory duty—and I cannot work out when that will apply. You could come up with some odd situations; for example, where someone sees a child in difficulty and bursts through a barrier, destroying it, and is sued by the local authority for damage to its property. That would be a ridiculous one, but it is an example. You would see the local authority arguing, “We don’t think he was acting heroically because the child wasn’t really in difficulty. It was 11 o’clock at night and goodness knows what had been going on before that.” That is a farcical example but it helps to illustrate the issue with what this word “heroism” actually means.More troubling in that paragraph are the last three words: “or other interests”. The person is acting “without regard” and these words are conjunctive; the law normally regards words in legislation as conjunctive, so that they are a chain and each one of them has its place. They either have to be without regard to their own safety or to their other interests. That throws it to the imagination of the legal profession, to be honest, to come up with what someone’s other interests might be, particularly when it is a defence mechanism. This is essentially about the way a person who has injured someone can avoid their responsibility by relying on their “other interests”. The little bit in the middle—
“intervening in an emergency to assist an individual in danger”—
is fine, but the law already covers that. There is no doubt about it.
Clause 3, which is about responsibility, talks about demonstrating a
“generally responsible approach towards protecting the safety or other interests of others.”
Within our current law, we already have a process of risk assessments. Risk assessments are not actionable per se. There is an obligation on the part of the employer, enforced by the health and safety authorities and local authorities, to ensure that risk assessments are done. I think this is a chain of causation problem. Let me give you a simple example, looking at what we understand to be the general purpose: a teacher decides to take a school party on a hill walk. The teacher is responsible, so they consult the guides and speak to people in the local community. They actually go on the walk themselves the day beforehand, to ensure there are no hidden dangers, and it is a dry day. The next day, the teacher takes the school party up and it starts raining heavily. They come to a path which is very steep and has become muddy. The teacher takes the decision there and then to carry on with the walk, because it is nearly finished, but a child slips and is injured. The local authority, when defending the claim brought by the child’s parents, will say, “This is a teacher who demonstrated a generally responsible approach towards protecting the safety and interests of others.” The teacher clearly did that but, on the spur of the moment, the key decision to go up the muddy path was the wrong decision and a negligent one, because the path was dangerous. Where does that chain of causation begin? There is no apparent link to the direct act at the time, and that is part of the problem with accidents. Accidents tend to happen as a result of a build-up of events.
If we look at clause 2, on social action, you must all know what I am going to say here. This is about whether the event occurred when the person—the tortfeasor or apparent wrongdoer—was acting
“for the benefit of society or any of its members.”
We are talking about whether the Royal Bank of Scotland, for example—a public body in a sense—was acting in the interests of society or the interests of others such as shareholders in marketing interest rate hedging products. It is a perfectly plausible argument in that case. Again, I do not understand why the phrase “interests of others” is there, particularly if you look at it in terms of the relationship between clauses 2 and 3. In clause 3 it is
“safety or other interests of others”.
“benefit of society or any of its members”.
It is not clear that the benefit of society is also the benefit of any of its members. I suspect that is what is intended. I suspect that what is intended is the “benefit of society or the benefit of any of its members” but that is not clear.
Q 4 Chris Evans (Islwyn) (Lab/Co-op): I was very interested in what you said about words. Obviously words in law are very important. What I am most concerned about is that, as you said in your evidence, the Bill does not affect overarching health and safety law. I wanted to tease out some more what you said about the benefit of society. If you were defending someone and the Bill was on the statute book, how would you interpret “the benefit of society”?
Fraser Whitehead: I would try for the widest possible interpretation. It is a very good question. An interesting way to look at it is to put it the other way round—it is an easier way to illustrate the dilemma. Supposing the provision had said that the judge had to take into account whether the wrongdoer was acting against the interests of society. You can imagine the arguments that would be raised there if there were trespassers or hooligans in a situation that caused an accident. How would the defence lawyers act? They would try to say, “These were just kids on a night out. It is important that young people are generally able to exercise discretion. They have to learn and this is a terrible thing.” How will it work? I just do not understand. The problem I have tried to highlight is, yes, if you give a benevolent approach to the interpretation you can understand what is intended. It is aimed in the same way as the Compensation Act 2006 was, which was about voluntary, charitable activities. In some ways this could be said to be the same, but it appears to go very much further.
Q 5 Chris Evans: The intention of the Act is to encourage people to volunteer. The Bill is extremely short and we are talking about wide-ranging social issues which would go back years. Do you think the intention of the Bill is to encourage people to intervene?
Fraser Whitehead: If you are talking about injury compensation, it is a long time since I practised in that area. One of the things that has always troubled me in the methodology, talking about the compensation culture and in the introduction to this legislation, is that as a practising lawyer I never took on or ran a case that I thought would deter people from engaging in voluntary or good activity. Most lawyers would think that that was not the right kind of case to bring. I do not think there is any evidence—I would be happy to be persuaded—
that people have been deterred by court cases from engaging in socially responsible activity. I know there is a fear.Q 6 The Parliamentary Under-Secretary of State for Justice (Mr Shailesh Vara): What form of consultation have you undertaken to ascertain the views of your members? Was it an online survey or a written survey? Did you have meetings with them?
Fraser Whitehead: My responsibility in the Law Society is to chair the legal affairs and policy board. One of the committees that reports to us is the civil litigation committee. I am a former chair of that committee, and I therefore take an active interest in its affairs. The proposals we put forward in our modest but short contribution, to which I am adding today, have been approved by the chairs of those committees and myself, and they have been discussed by what I would call the key litigation figures in the Law Society. We have not consulted widely on the Bill with our membership as far as I am aware, but I might be corrected on that by someone behind me. I speak from the position of having been a practitioner. I have been practising civil litigation for 40 years as a solicitor, and it is an honestly held belief. I cannot put it higher than that.
Q 7 Mr Vara: Are these personal views that are shared by a limited number of colleagues in the Law Society—the other chairs that you mentioned—as opposed to the views of the majority of the Law Society, whom you admit that you have not consulted?
Fraser Whitehead: The position I am putting forward is the Law Society’s position.
Q 8 Mr Vara: I appreciate that you represent the Law Society, but the Law Society has thousands and thousands of members. I want to know how many of those members have been consulted and, if so, by what means. Were they consulted via a survey, for example? You have said that no such survey of those thousands of members has taken place. Having ascertained that element—I appreciate that you have practised in this area for 40 years—am I right in saying that this is your view and the view of one or two other people? You mentioned the chair of one committee or another, but how many people precisely have had an input into the views that you have put forward today? Are they principally your views? If not yours alone, how many other individuals have you spoken to who share your views? Finally, will you kindly tell me the precise number and their names, if possible?
Fraser Whitehead: The Law Society is actually a democratic structure, so the views of the grassroots, if I can use that word, channel up through a series of things, including local law societies, into the committees and the council of the Law Society—
Mr Vara: Forgive me for interrupting, Mr Whitehead.
Fraser Whitehead: I am not avoiding the question.
Q 9 Mr Vara: As a former solicitor, I am aware of the structure of the Law Society. Basically, you have not consulted your members. You are relying on the views of a small number of people who sit on a specific committee of the Law Society.
Fraser Whitehead: The people on whom I am relying are a wide cross section of specialists.
Fraser Whitehead: The total number is approximately 35.
Q 10 Mr Vara: Have 35 people given you their views, either in writing or by speaking to you?
Fraser Whitehead: No, but we have discussed—
Mr Vara: Thank you. I am mindful that time is limited, and I am happy to give way to someone else.
Q 11 Ian Swales (Redcar) (LD): I understand that your concerns on this are that you see it as an attempt to codify the discretion of the judiciary. I would like to turn that around. Do you believe that the judiciary already have, and use, the discretion implied by this Bill in their work, or do you believe that they are currently constrained from doing so?
Fraser Whitehead: I do not believe they are constrained. I believe that, within the fluidity of the common law, they have sufficient discretion to cover everything in this Bill. My concern is that we will be jammed with litigation challenging the existing precedents.
Q 12 Stephen Metcalfe (South Basildon and East Thurrock) (Con): You talked about the judiciary understanding the fluidity of common law and the responsibilities that exist. Do you think that the public understand that? Do you not think that the Bill will go some way towards helping the public understand that laws exist to protect them if they are acting responsibly?
Fraser Whitehead: That is a very good question. The common law is a mythical thing. It is designed to represent a composite position of society, but it is reflected by the judiciary. It is a valid question whether the judiciary actually reflects that. In the same way that I would have answered the Minister’s question, it is unclear.
The Chair: That brings us to the end of the time allotted for the Committee to ask questions. On behalf of the Committee, I thank the witness for his evidence.
Examination of Witness
Dr Justin Davis Smith gave evidence
12.30 pm
Q 13 The Chair: We will now hear from Dr Justin Davis Smith CBE. For this session we have until 1pm. Will the witness please introduce himself for the record?
Dr Davis Smith: My name is Dr Justin Davis Smith and I am Executive Director for Volunteering at the National Council for Voluntary Organisations.
Q 14 Mr Slaughter: Thank you for joining us today. We had the advantage of a short briefing about the Bill from you on Second Reading. I do not want to paraphrase your views—I would like to hear them in your own words—but you quoted the only survey I have seen
quoted, from 2007. I think it was a sub-set of an original survey done in 2005. A pool of people talked about volunteering and their reasons for doing so. One finding was that only 1% of volunteers who had stopped volunteering said they had done so because of concern that they would open themselves to litigation.I do not know if you have had the benefit of seeing the survey done last month by St John Ambulance. That shows that twice as many people will not intervene in difficult situations because they fear that their own skills in first aid are not up to it. They are worried about the consequences. Could you give your view now as to what you think the major barriers are to volunteering and interventions of that kind and what the best ways to improve those levels are? I think volunteering has actually gone up recently, but what do you think are the best ways of improving that and do you think legislation such as this is the best way to do that?
Dr Davis Smith: I would draw a slightly different conclusion from you from that 1% figure and I will say why in a moment. Our starting point at the National Council for Voluntary Organisations is that volunteering is a good thing and we need to find ways of engaging even more of our community in volunteering and social action. For us, therefore, the issue at stake is two-fold. First, is there any evidence that people who might otherwise volunteer are deterred from volunteering because of a risk or perception that they might be sued should something go wrong? Secondly, if there is an issue, is this Bill likely to go some way towards reassuring them? I think, and my organisation thinks, that on both counts there is enough evidence—tentative perhaps—to say that this is worth doing to address that issue.
You are right to draw attention to the 2007 “Helping Out” survey, where you referred to the 1% of people who had stopped volunteering, citing the reason that they risked being sued. For me, the more important figure in that survey was the 47% of people who do not volunteer and, when asked why, said that it was the risk, fear or perception that they might be sued or litigated against.
Our conclusion from that is that there is a real concern stopping a significant proportion of people getting involved, but it is largely perception. All the evidence that I have seen would suggest that we are not in the grip of a compensation culture, but nevertheless people perceive there to be one. I think that perception, that myth, that fear is just as big a deterrent as if there were the reality of a compensation culture. That figure of 47% in 2007 suggests that that is the case. In fact, the 1%, who had volunteered and then given up and cited that as a reason, adds weight to the fact that it is mainly perception rather than reality. Once they are engaged in volunteering, perhaps they realise that it is not as big a barrier as they thought originally.
If we come on then to the St John Ambulance survey that has just been reported, it helpfully adds weight to that position that we spelt out in the briefing note that you referred to. You are right to say that fear of being litigated against was not the main reason given by the 2,000 or so people interviewed for why they did not get involved in first aid—and it is worth saying that that is the very specific form of volunteering that St John was looking at. The main deterrent, as you say, was the fact that people did not feel that they had the right training
to get involved. But that survey nevertheless suggests that 34% of adults who would not intervene in a first aid setting say the reason was that they feared legal repercussions.If you look at young people—I know there is a lot of interest in Parliament and in the Government about engaging more young people in social action—that figure goes up to 38%. I think there is significant evidence from 2007 which is backed up by the recent St John Ambulance study.
Q 15 Mr Slaughter: Just to press my second point, if you are right that it is a perception rather than a reality, some might think that is because the Government and insurance companies keep telling us that that is true. What is the best way of addressing that? One of the Conservative MPs who spoke on Second Reading asked whether we are expecting this Bill to be nailed up in every public place so that people will read it. Do you not think that education, or training of the kind suggested by St John Ambulance, would be better ways of putting that compensation culture myth to rest, rather than effectively adding to it by enacting a piece of legislation that probably no one will ever read?
Dr Davis Smith: There is no one way and I am certainly not suggesting that this is the only way, or even necessarily the best way in isolation. St John Ambulance talks quite rightly about the importance of training in first aid to raise people’s confidence about being prepared to get involved, with which we wholeheartedly agree. It does not, however, seem to me unhelpful for a Bill to come before Parliament that, as I understand it, does not seek to change the law but that is basically about sending a message from Parliament to courts about the importance of responsible social action; about accepting the fact that sometimes accidents can happen; and about reassuring would-be volunteers that those factors will be taken into account, should something go wrong. Should the Bill become an Act, we would certainly be very happy to help promulgate some of those views through our 11,000-strong membership to try to get this view better embedded in the voluntary and charity sector.
There is no one answer. To answer your question, training is important, but the Bill is not unhelpful and it could be helpful alongside a package of other measures.
Q 16 Mr Slaughter: I do not know whether you accept the legal connotations of the Bill, which are that it will not change the substantive law: it will send out signals rather than anything else. I take it that you are familiar with section 1 of the Compensation Act 2006, which says that courts should consider whether their determinations may
“prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way…or discourage persons from undertaking functions in connection with a desirable activity.”
Your survey, I think, took place after the passage of that Act, but perhaps before it had taken effect. How do you now see the Bill—certainly clause 2 of it—differing from what is in that Act?
Dr Davis Smith: I am not a lawyer, so I could not give you chapter and verse about how it differs. My understanding is that it is trying to address a similar issue, but not in exactly the same way. The findings we
both referred to from the St John Ambulance survey suggest that the 2006 Act has not been completely successful in terms of reversing this myth and, therefore, we would argue that additional action is required, such as legislation alongside training to address the fact that 38% of young people say they are put off volunteering in those sorts of settings. We would argue that that is a big social problem.Q 17 Mr Slaughter: Is not one of the problems with surveys such as yours and St John Ambulance’s that, if you offer people a range of choices, you are saying not, “What are your problems?” but, “Do you think this is an issue or that is an issue?” You are suggesting those matters to them.
I have one final point. A possible reason why the Compensation Act has not registered with the public consciousness is because it is rather dry legislation, like this. I go back to my point that perhaps better ways can be found to educate the public. However, the 2006 Act is specific about saying that it wishes people to engage in desirable activities. This Bill implies that if you are negligent in the process of conducting a socially useful activity, the judge may take that into consideration in deciding whether you have been negligent. Do you think there is a risk that that will put off people from taking part in activities, because they might think that if something goes wrong, they will not be able to sue?
Dr Davis Smith: On the question about the methodology underpinning the research, I would agree. If you prompt people to respond, you get a different answer than if you ask open-ended questions. Nevertheless, I think the weight of the evidence suggests that it is not simply a result of the way in which the questions were asked, and they seem to be reasonably consistent over time.
On your second question, I come back to what I said earlier. My understanding is that the Bill is not about substantively changing the law; it is more about giving a message from Parliament to the courts about the importance of volunteering in our society and the importance of social action. I would accept, as I think I already have done, that legislation alone cannot crack this problem. If the 2006 Act has not been as successful as we wanted it to be—I do not know—perhaps the reason is the lack of dissemination and working with and through voluntary organisations to try and get those messages out to the coal face. I like to think that if this Bill goes through Parliament, there will be a more concerted effort to try and engage the community groups and the charity sector to help embed this within the culture of our society.
Q 18 Mr Slaughter: With respect, my point was not about the law, but about perception. Imagine I am a parent thinking about sending my son to a scout camp. If I am sending him somewhere that is run enthusiastically by volunteers, I might think that if something goes wrong I will not have the same rights to sue, even if a serious injury takes place.
Dr Davis Smith: I do not think so. I think the voluntary and charitable sector takes its health and safety responsibilities hugely seriously. The old suggestion that volunteering somehow equals amateurish is really not a view of the modern charitable sector that we cherish and value so much in this society. I really do not think that that is true at all.
Q 19 Mr Slaughter: Sorry, but you are missing my point. It is not about the competence; it is the fact that the child may not be sent in the first place, because the parent has read in the paper that if something is being done for charitable or socially good motives, there may be less responsibility or the standard of care may be lower or there may not be a right to sue. They might be wrongly thinking that, perhaps, given what you have said about the Bill, but thinking that nevertheless.
Dr Davis Smith: With due respect—perhaps I was not being as articulate as I could be—I did understand the question, and my response was that I think that most people now who might send children on the outward-bound type or volunteering activity that you referred to have a much deeper and better understanding of the nature of charitable activity and the importance that charities place on health and safety issues. We work really hard with our members to help them think through their responsibilities and their duties of care. There is a lot of attention now within the voluntary and charitable sector on risk assessment and making sure that activities for children or other vulnerable people or other clients are as safe as possible. The reality of course is that in any setting, however much you plan or prepare for any eventuality, sometimes things will go wrong. Our concern is that if we do not get a better balance in our society between proper risk protection and accepting that sometimes, with the best possible preparation, things will go wrong, we will end up living in a society in which people will not be prepared to put themselves forward in sufficient numbers to do all the valuable work that they currently do in their community. I think that people’s perception of how seriously charities take their duty of care is much higher than perhaps you are suggesting.
Q 20 Stephen Metcalfe: I want to carry on discussing one of those points. First, will you confirm with a yes or no answer that those who are willing to play a greater role in wider society through the voluntary sector need signals to encourage them to get involved and need to know that the law is there to protect them? I think that the Bill goes some way towards doing that.
Secondly, very early on in the passage of the Bill we should stamp on the suggestion that organisations, charities and volunteer groups will behave in a more cavalier or gung-ho fashion because of the Bill—we should not allow that message to gain traction. We must not suggest, for example, that the Bill will undermine the safety of children at a scout camp. I want you to say as forcefully as you can that the Bill will have not a damaging effect on the voluntary sector but a positive one.
Dr Davis Smith: I wholeheartedly agree with your first point. Parliament has a hugely important role in sending out messages about what is valued in society, and I think that sending out the message that volunteering and community and social action has a hugely beneficial role to play in society—recognising that there are barriers and difficulties that must be addressed—is a really important function that Parliament can play. Even the process of having discussions such as this and getting the debates out as part of the passage of legislation is helpful in raising awareness in society more broadly.
On whether the Bill could inadvertently send out a negative message and enforce or encourage bad behaviour, I would say two things. First, I would repeat what I said
in my answer to the previous question: all the evidence I see from our very broad membership base at NCVO is that charities and voluntary organisations take their duty of care hugely seriously. Any suggestion that somehow they are looking for opportunities or that they might be tempted not to take their responsibilities hugely seriously would be doing our great charitable and voluntary sector a disservice.If I may elaborate a little more on that issue, we have a second concern that, in addition to the possible negative effect that some of this myth might have on individual action, we hear evidence from some of our members—anecdotal evidence, perhaps—that organisations are tempted to close down and stop some of the most valuable and risky activities because they themselves fear that they will be sued should something go wrong.
If I may, I would like to give an example from our membership. We asked around our members in advance of coming up with our position on the Bill and my coming before you today, and one local volunteer centre got back to us with an interesting story. The centre has been running a volunteer transport scheme for many years. Twenty-five volunteers help to take people to hospital or to the doctors—mainly older people who would not be able to get there through lack of public transport or because they do not have access to private transport. Last year, one volunteer was helping someone into their car after a hospital appointment and the person slipped and broke their leg. The organisation is now dealing with a claim for negligence, which is causing real consternation to that organisation and, I am sure, to the individual volunteer.
The organisation is currently thinking through what it needs to do and the effect that the claim will have on its service. One likely effect that it has mentioned to us is that the cost of offering that service to clients will have to go up because it now has to spend a lot more time on paperwork and on dealing with the scheme. None of that was a suggestion from this organisation that they should be cavalier or that they should not take seriously the concerns and the health and safety of those vulnerable clients; they were merely reflecting back to us that it is not impossible that those sorts of schemes might be closed down in the future if the wrong sort of message gets out. Even with the best planning and training, accidents can sometimes happen.
Q 21 David Rutley (Macclesfield) (Con): All of us on the Committee recognise the NCVO’s huge contribution and your experience of working with voluntary organisations. Thanks for all that you do.
Can you just remind us of the scale of the organisations that you represent? As I go about my activities in my Macclesfield constituency, it is not only St John Ambulance that has issues with trying to attract people into the organisation to work with youngsters. There is a queue of youngsters who want to get involved, and I understand that there are specific concerns about first aiders. When I speak to scouts, guides and others, it is a similar situation. There are more youngsters who want to get involved with these organisations than we have volunteers able to support them. Could you help by giving us a better sense of the scale of the challenge, given the size of your organisation? That would be incredibly helpful. Also, could you let us know how you sought to engage with your members to get their thoughts about the Bill?
Dr Davis Smith: Thank you for your nice comments about the NCVO and our work. We are a membership organisation, and we have 11,000 members of all sizes, representing the diversity within our society. Some are very big, involving tens of thousands or hundreds of thousands of volunteers, such as the National Trust, St John Ambulance and some of the big, household-name charities. However, we also look to offer a service to smaller charities, and we offer a free membership service. Some 7,000 of our 11,000 members have free membership, which means that they have a turnover of less than £30,000, so we believe that we represent a great diversity of voluntary and community activity, from the very large, household-name charities to the small community groups, many, if not most, of which are run entirely by volunteers without any paid staff.
This perhaps begins to address your third question about how we sought to engage our members on the Bill. We sent a survey out to our members asking about the scale of the issue, and the example of the transport scheme came back from a local volunteer centre. We had a response from about 500 members, which is not bad for a quick temperature take of the situation. We are the first to say that we do not want to over-dramatise the scale of the situation, which would be a disservice, but nevertheless the survey mirrors some of the larger national surveys. Indeed, a routine part of our work is that we take inquiries on a day-to-day level from our volunteers, who ring up because they are concerned about these sorts of issues. As I said earlier, we believe that there is enough of an issue here to think that it is worth while trying to shift this myth, or this perception, yet again.
One of the interesting issues in relation to size is that in the quick survey of our members we asked whether they feel that they are able to handle the risk associated with litigation issues that might be brought against their volunteers, and 16% of the 500 members that responded said that they do not feel very confident in managing that risk, but a further 27% said that they feel only a little bit confident. There is a risk management concern among some of our members, but the interesting thing was that, the smaller the organisation is, the more the level of concern goes up. That is not surprising because some of the large, household-name charities have their own in-house legal teams or access to legal services. It is often the small community groups, which are sometimes run entirely by volunteers, that are doing some of the most challenging, potentially risky but certainly most worthwhile activity in our communities, and they are perhaps most challenged by some of the issues that have been raised.
Q 22 David Rutley: Based on the response that you have had and your experience—notwithstanding that there is a broader requirement not just in legal terms but on education—is your feeling that a legal response, as part of that mix, would be helpful?
The Chair: If there are no further questions, I thank the witness for his evidence. That concludes our business for this sitting.
Ordered, That further consideration be now adjourned. —(Mr Wallace.)
12.55 pm
Adjourned till this day at Two o’clock.