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Baroness Turner of Camden: I am grateful to my noble friend for her comments. There was much support from all sides of the House for the principles in the amendment and the Government have taken on board the need to involve the children. I noted with satisfaction her comments about the research carried out by Save the Children and I am willing to provide her with a copy. If that can be reflected on between now and Report, it is to be hoped that the Government might themselves propose a suitable amendment if they do not like my wording. I thank those noble Lords who have participated and, meanwhile, beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Walmsley moved Amendment No. 153ZA:


"EXTRA-CURRICULA ACTIVITIES: RISK
(1) A school or its servant or agent which, in addition to its curriculum, provides formal or informal educational activities for its students may provide to any parent or guardian a statement that the activities it provides may involve risks or personal injury or harm or risks to the property of the student.
(2) The statement shall be in writing and shall explain that the parent or guardian accept that participation of their child in the activities provided by the organisation may involve risks of personal injury or harm or risks to the property of the student.
(3) The risks shall only be those covered by the activity, including travel to and from the point where the organisation takes over the supervision of the student.
(4) The acceptance of the risks by the parent or guardian shall not exclude the organisation or its servants or agents from any criminal liability.
(5) The statement shall not apply to any activity which the student concerned is obliged to undertake.
(6) Where, in accordance with the Act, such a statement has been issued and accepted by the parent or guardian, this must be taken into account by any subsequent court proceeding for negligence or breach of duty, in considering the liability of the school or its servant or agent."

The noble Baroness said: I am sure that all noble Lords would agree that extra-curricular activities are enriching to a child's education and development—their mental, social, physical development and so on. Those activities that involve physical adventure are particularly enriching, because they help develop the person's character and their team-building skills. Many organisations other than schools also lead and organise such activities but, unfortunately, I was not able to include them in the amendment, due to the Long Title—I had to stick to schools. But I would like
 
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your Lordships to keep in mind credible and responsible organisations such as the Scout Association, the Guide Association and Outward Bound, which, in addition to schools, lead such activities.

A difficulty is that many schools and other agencies feel constrained about organising such activities—that stretch young people and are good for them—because we live in a litigious society, where some people believe that you should not do anything with any risk attached at all. But the very risk itself helps young people to develop. They need the opportunity to practice assessing the risks and behaving in a responsible manner, taking into account not only their own safety, but that of the group in which they are working. So I am sure we would all agree on this, but the problem is the constraint posed by the danger and the organiser's career being completely destroyed if something goes wrong.

I would never suggest a measure that would protect people who are genuinely at fault, who behave in an irresponsible manner and who put the safety of children at risk, but there is an inherent risk in some activities. If both the children and their parents undertake such activities in full knowledge of the risks, and accept them, it is reasonable to suggest that, should something go wrong, the fact that they have accepted those risks should be taken into account in any legal proceedings that might ensue.

I would hope that once parents understand and accept risks, they would not go running to the courts if something goes wrong, and they can see that it is "just one of those things" and not the result of criminal irresponsibility, which can never be condoned. I believe that it would be reasonable to insert into the Bill this new clause to allow for the risks to be assessed, to be agreed to in the full knowledge of what they entail and to be taken into consideration in any legal proceedings. I ask the Minister to bear in mind in his reply that such a provision could apply equally to non-school organisations that carry out similar activities. I beg to move.

Lord Hanningfield: Whether or not this clause is exactly right, we support a provision of this kind being included in the legislation.

Lord Dearing: The Committee will recall that the noble Baroness, Lady Sharp, and I raised this issue in connection with school trips some time ago. I accepted the Minister's comment to me at that time that very few suits are initiated, but this proposal is wider. I know that there is great anxiety among teachers about such matters. The Government are very committed to encouraging much more physical activity and games in schools and they are putting a lot of money into that. If this is to fructify to the fullest possible extent, it will involve extra-curricular activities by teachers; for example, refereeing matches. I know that they can be at risk for allowing an activity to take place.
 
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I believe that this amendment constitutes very good practice and should be standard practice. Perhaps it should be in the Bill although perhaps the final subsection is not quite right. I believe that this new clause makes good sense and practice.

Lord Filkin: I understand the intent, but the amendment certainly does not achieve its intent, as I shall explain. As yet, we remain unpersuaded that the route to solving the problem is through legislation, although solving it is undoubtedly important. As the Committee knows from previous debates, the issue is as much about the perception of the fear of litigation as of litigation itself. The Better Regulation Task Force was very clear on that. Nevertheless, that does not mean there is no problem, but what is the right way to solve it?

Clearly, we strongly support the aim of offering children the opportunity to learn through experience in the world outside the classroom. There is a consensus in the Committee on that. We are also glad to know from local authorities that the number of school visits overall remains stable or is increasing. So we are not facing a reduction in activities and the world is not about to collapse.

Our belief is that we need to respond by supporting and spreading the wealth of good practice shown by teachers and employers which we know is taking place in schools. I shall set out what we are doing to achieve that. The amendment would entitle any school, or any member of its staff, when providing extra-curricular activity for educational purposes, to provide a statement that there are risks associated with the activity. Where that statement has been accepted by the parents of a student, a court would be required to take this matter into account in any subsequent proceedings for negligence or breach of duty. That might appear to provide some incentive to schools.

In reality it may have the contrary effect, in that, by reducing the legal protection of pupils against the negligence of a school or its staff, parents and schools may be less inclined to allow children to participate in such activities. Clearly, that would not be the intent; but it is certainly plausible that it may be the consequence.

We are also concerned that it might only serve to obscure the legal position while not actually contributing to the culture and mindset that undoubtedly the noble Baroness and the Government want to promote.

I shall set out what we are doing to support and spread further the wealth of existing good practice. We have issued guidance for local authorities, teachers and schools regarding safety, especially on school visits. That has been warmly received by local authorities and described by them as a "quiet revolution". It recommends that local authorities and schools ask parents to sign a consent form, which is designed to inform parents about the risks of the activity, the measures taken and the need for their child to behave responsibly. The guidance encourages schools to involve pupils, so far as is practical, as the
 
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noble Baroness, Lady Walmsley, wanted—and she is right—in assessing and managing the risks themselves so that they both own that and also use it as a learning experience in future. It is vital that children taking part in these events are risk-aware, not risk-averse.

At each stage of the planning of the event, schools are encouraged to discuss safety and other issues with parents and pupils, while ensuring that risks are managed in context. This kind of close working relationship is fundamental.

Also, my right honourable friend Charles Clarke, previously Secretary of State for Education, in November said in his speech to heads that we recognise that, when accidents occur, teachers and schools can face investigations and possible penalties. Parents should expect a school to tell them the full story and explain how they did all they reasonably could. By the same token, a school and its members of staff have the right to expect parents to support them by taking a fair view. We need to investigate serious incidents and to take all necessary steps to manage risks. Where negligence is proven, it is of course right that the law should take its course. But we absolutely agree that teachers deserve the starting point of a presumption that they have carried out their duties conscientiously.

We have also recognised the concerns of the National Association of Schoolmasters/Union of Women Teachers on school visits, and we are in active consultation with them and other teachers' groups on whether we might take any further steps to maintain and promote both safety, and fair treatment for all concerned.

I shall finally set out my concerns on the possible legal implications. First, the provision seeks to restrict the likelihood of claims in negligence. We fear that its effect would be to lead schools to believe they could afford to take less care of a student whose parents had accepted a statement of this kind. Clearly, that would not be the intent but we think that it is at least plausible. It requires a court to treat a claim by an injured child whose parents have accepted a statement differently from a claim where no statement is accepted. We are concerned that this should not be the case, as any harm to a child arising from the negligence of another party should be treated with the utmost seriousness irrespectively. We are doubtful, therefore, whether a court would, in any event, treat cases arising in that way.

As drafted, the amendment extends to risks involved in travel even where the children concerned are not under the supervision of the school.

It is proposed that the provision of a statement applies only to non-compulsory extra-curricular activities. We fear that this will lead to uncertainty; the amendment would also result in the law of negligence for some activity by schools being different from the law for other activity by schools or others. That is not what the noble Baroness wanted to hear. She did not want a legal diatribe on why it was the wrong amendment, even though we think that that is the case.
 
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The issue is whether it is realistic to find the solution to this through legislation or other means. Our current mindset is that it should be through other means, while recognising that the Secretary of State for Constitutional Affairs is looking seriously at the broader issue about trying to deter unnecessary litigation when people should be accepting that accidents do happen and that that is part of life.

Therefore, we want our department to take promoting a culture of trust and awareness very seriously. We would like to continue to involve Members of the Chamber in our progress, so that we give you the fullest picture on how we seek to address the issue. I will make sure that we will do that in the future.

In conclusion, we share the objective; we do not think that this is the right means; and we are doubtful whether legislation is the right means. No doubt we shall all reflect on that issue. We certainly want to give noble Lords a fuller picture of what we are doing and what is being done across government to seek to make these issues better managed in the future by parents and by schools. I hope that that is helpful.


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