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Lord Hunt of Wirral: I am overcome with largesse. First, I am very grateful to the Leader for bringing me and other members of the Grand Committee mince pies and I am very grateful to the Minister for conceding this point which has been troubling, not only me and my colleagues, but a number of people outside. Of course we will make ourselves available for such further discussions as are necessary as we seek to ensure that the right amendment is brought forward on Report. I am very grateful to the Minister for once again demonstrating that she has an open mind in order to bring about a satisfactory conclusion to these discussions. In those circumstances it may be for the convenience of the Committee if I indicate that I will not only not move Amendment No. 22, but that I will also not move Amendments Nos. 23, 76 and 106. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 22 to 24 not moved.]

Lord Greenway moved Amendment No. 25:

The court shall take into account any adverse consequence to the community of a finding of negligence."

The noble Lord said: I shall speak to the amendment, if only to hear what the Minister has to say. Where negligence is found in any case it can profoundly affect any community in relation to sporting or recreational activities taking place. In the main instance it deters would-be volunteers who are frightfully important in the scheme of things in relation to recreation.

Perhaps I may refer to one incident that was settled out of court. Had it gone to court and the person in question had been found negligent it would have had a bearing. It relates to a British Canoe Union 30-mile race down a river, which involved a narrow half-mile long cutting. A volunteer marshal was positioned at each end to warn crews entering it about any powered craft that could present a danger. A powered boat entered the cutting and four minutes later a kayak arrived travelling in the same direction. The marshal allowed it to enter on the strict understanding that there was a powered craft in the cutting and that the
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crew should not try to overtake it. They ignored the instruction and overtook the boat, causing damage to it.

A negligence claim was made against the volunteer marshal, alleging that he should have assumed that the crew would ignore his instruction and that, therefore, he was negligent. That seems to me to be a strange case to bring. Anyway, it was settled out of court on legal advice, but the volunteer, needless to say, will not be offering his services again. There is another adverse effect on people who organise local races and so on: their insurance costs go up, which is another reason for the amendment. I beg to move.

Lord Lucas: I would just like to come back to the general question of how we enable people to make it clear that anything someone does is at that person's own risk. There is no way a marshal can restrain someone from going in. Have they always got to say "No", or are they allowed to assume that a person will act responsibly? This seems to me to be a typical case. As we said the last time we discussed this, where you are dealing with adults and where the adult can take a reasonable view of the risks involved, and there is not some hidden danger that they do not know of that would require them to be prevented from undertaking something, it should be absolutely clear that if someone proceeds at their own risk that is a reasonable thing for a person in charge of an event to allow. I just do not know how it can be done, and if the noble Baroness has any views on that I would love to hear them.

Baroness Ashton of Upholland: The courts are quite good at sorting out many of these issues. It is always very difficult for me to look at individual cases, as the noble Lord will accept. Speaking in general terms, the courts are very capable of determining the circumstances and taking into account all the different factors.

I completely accept what the noble Lord, Lord Greenway, was saying about the importance of volunteers. The work that we are doing with the Home Office is particularly focused on ensuring that we get the right number of volunteers and they are not deterred by the compensation culture. The latest figure that we heard was that something like 25 per cent of people who might have thought about volunteering raised it as an issue. I have no idea how prompted they were to raise it, but none the less it is a startling figure. It is important that we equip volunteers with the confidence as much as anything that in the circumstances in which they operate—provided they operate effectively, properly and with due care—they will be treated properly and not be found wanting, if that is not appropriate.

There is another side to this. We are back to my see-saws. On the other hand, particularly with children and young people, you have to ensure that the quality of the support they get when taking on activities that may be "risky" is adequate to ensure that they are not put at undue risk. That balance is important. Just as I have always believed that it is important that in the
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Bill we make it clear that we want people to participate in activities and we want to support volunteers, the quickest way to prevent people not participating is to move in the other direction and say, "We are not going to have any liability so it does not matter what you do". I am not suggesting that anyone is saying that, but there is again a balancing act there. If I take off my ministerial hat and put on my mother hat, my daughter and my son participate in all kinds of things, but I know that the quality of the care and support that they get is appropriate. It does not mean that nothing will ever happen, but it does mean that when they are sailing or doing other activities they are guaranteed a high level of expertise, experience and quality from the instructors, and I can feel comfortable in them doing those activities. That is the balancing act that we are trying to achieve.

The difficulty with the amendment is that effectively we are saying that when you have taken all the factors into account and determined that someone is liable, you can then add on at the end another factor that says, "Ah, but would this have a detrimental effect on the community?". There are two problems with that. First, if someone has been found liable, we have someone who needs support or help who has been a victim, and their ability to get redress has been reduced or negated by another factor, which is not right. Secondly, it could have an effect that I am sure is not wanted, which is about making sure that activities that have a major impact on the community are properly insured, because insurance plays an important part.

I do not want to do anything in the Bill that might push us in that other direction of encouraging people to act less responsibly. I am keen to recognise that organisations, individuals and volunteers behave responsibly, and we should support them and give them confidence. I do not want to do anything that might push us in another direction; I am not saying that it would but I would not want anything that might do so. My difficulty with the amendment is those two things: first, that it could push us in that direction; and, secondly, that it would be something to be taken into account after someone has been found liable. These are rare cases; but they do happen. Occasionally we see cases where, frankly, an organisation or individual has behaved extraordinary badly towards another, and that individual has suffered as a consequence. The courts must have the capacity to say, "You are liable; you must make redress". I do not want to do anything to affect that.

So on that basis, while I understand the underlying principles of what the noble Lords, Lord Hunt and Lord Lucas, are seeking to do, I hope that the noble Lord will feel able to withdraw his amendment.

Lord Greenway: I have listened with interest to what the Minister said, and will read it again—but there is no doubt that what has happened has had a serious impact on would-be volunteers. For example, many Sea Cadets no longer sail on the sea, because it is considered too dangerous. That to me is a great sadness. Also, the second biggest teaching union has
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advised teachers not to participate in school trips. Even in the teaching profession, volunteers are involved—and that can have a big effect.

Baroness Ashton of Upholland: One thing that we have been doing with our colleagues in education is checking on that issue. There is no evidence of any school trips being cancelled anywhere in the country as a consequence of these issues. The noble Lord will rightly come back to me and say, "Yes, but what you don't know about are the trips that have never been started"—and I accept that that is an issue. But we have been careful in talking to schools to ensure that we are up-to-date with information about any trips that might be cancelled.

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