| Lawrie Quinn | Promotion of Volunteering Bill |
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Promotion of Volunteering Bill |
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Mr. Lawrie Quinn (Scarborough and Whitby): I am grateful to the hon. Gentleman for giving way on the point about consensus. Has he received any representations from the Association of Personal Injuries Lawyers with regard to this matter? It has certainly been in touch with me, and it has advised me in briefings that putting in place proper risk assessment and health and safety mechanisms before an activity is conducted will negate the possibilities of an accident occurring and perhaps leading to an appearance in court. That would be a far more positive way of taking forward the matter in hand than what he proposes.
Mr. Brazier: If I were feeling uncharitable, I would say that the Association of Personal Injuries Lawyers proves the old dictum that hell hath no fury like a vested interest masquerading as a principle. None the less, the hon. Gentleman makes a deeply serious point that I shall address at some length in a moment.
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Lawrie Quinn: The hon. Gentleman is being generous in giving way. He may recall that I have spent some time in this House trying to promote health and safety issues. In 2002, Sport England produced a document called, "Sports volunteering in England". Can he point to the evidence in that document that supports his new clause?
Mr. Brazier: I shall be delighted to do so - the hon. Gentleman has anticipated me by a line or two. I shall quote a document prepared about one year later by Sport England and the Central Council of Physical Recreation, which he can download from the website. The document identifies eight reasons why people choose not to volunteer. The reasons include the growth in bureaucracy, family pressures, and pressures at work, but the top reason is the blame culture and the fear of litigation.
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Lawrie Quinn: I have great respect for my right hon. Friend, as he knows, but I am sure that he has taken a look at the Health and Safety at Work etc. Act 1974, and I ask whether he sees any potential conflict with that legislation in terms of negligence claims being stirred up in a different, ill-thought-out way, and does he accept that that might deter more people from volunteering instead of achieving the laudable aims of the hon. Member for Canterbury?
Mr. Dobson: Our new clause says that the person concerned should take reasonable care and exercise reasonable skill against the background of some inherent risk. As I understand it, that is one of the principles that applies to health and safety at work legislation. Obviously, a steelworks is slightly more risky than the office of an MP in the House of Commons, and that is recognised in law and in practice.
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Lawrie Quinn: The hon. Gentleman and I have served for many hours on various Committees over the years, and his learned position on these matters is well known. As a sponsor of the Bill and a supporter of the new clause, will he help me with regard to the impact of a possible appeal to the European Court? As I understand it, the Joint Committee on Human Rights reviewed the Bill in its original form, and concluded that it was not compliant with the European convention on human rights, although the new clause may make amends for that. If the legislation were to go through, would it create the possibility of prolonged litigation going through the courts, ultimately ending up in Europe?
Mr. Burnett: I do not believe that any Bill is competent to oust the jurisdiction of the European Court. If we were debating European matters, I might have something to say about that. Nevertheless, it is always open to litigants to appeal further on the basis of what we have drawn into the law of this land, namely the European convention on human rights. People can now plead that at stage one, rather than having to go to in Strasbourg after having exhausted their right of appeal in the House of Lords, so I do not entirely follow the hon. Gentleman's point. It is always open to litigants to plead the human rights convention.
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Lawrie Quinn: On the fundamental issue of training, like my hon. Friend, I have been involved in volunteer activities. Training and realising a level of competency before undertaking "management" activity as a volunteer leader is crucial. How far is he concerned that this new clause might dilute the importance of making sure that volunteers have high-quality training, so that whatever activity is undertaken is done as safely as possible, recognising all the risks that might occur, in line with health and safety legislation and so on?
Mr. Stewart: My hon. Friend makes an important point. I have always been a great believer that although volunteers are not paid, they are professional - my right hon. Friend the Member for Holborn and St. Pancras (Mr. Dobson) made a similar point earlier. Of course, there is a duty of care on any organisation to make sure that volunteers are properly trained, and that health and safety issues are highlighted. What we cannot do, however, is to take away all risk in society. Some responsibility must be put on individuals, too. My hon. Friend makes a good point.
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Lawrie Quinn: Further to the clear point made by my hon. Friend the Member for Inverness, East, Nairn and Lochaber (Mr. Stewart), public liability claims went down by 16.7 per cent. in 2003-04. Is that not because people are taking the proper precautions to ensure that such problems do not arise in the first place? Should not the House be doing precisely that: ensuring that risk is managed effectively to prevent such problems from occurring?
Mr. Dismore: My hon. Friend makes a very important point and I hope to return to that issue shortly. We in the House should encourage the development of a safety culture, not a compensation culture.
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Lawrie Quinn: My hon. Friend is indeed being generous with his time. The hon. Member for Canterbury (Mr. Brazier) made a fair point about negligence. As I said earlier, I am concerned about how the rules of negligence could be varied by the new clause. I note that in amendment No. 60 my hon. Friend tries to respond to the concerns about clause 2(3)(d), which would turn the duty on employers under health and safety legislation into a shared responsibility. When will he address the reasons why he seeks to delete that paragraph?
Mr. Dismore: I shall come to that issue later in my remarks, but it may not be for a while.
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Lawrie Quinn: I do not wish to make a point about rafts, but to return to canoes. With regard to subsection (3), which my hon. Friend was trying to address, when I was in Alaska last summer - presumably, this relates to the north American model of law - I had to sign a waiver before I went in a canoe to dispel any risk. Does he envisage that subsection (3) would involve a piece of paper to show a variation in the contract between the user and the provider of the volunteer activity? Would a waiver document be required to fulfil that part of the contract?
Mr. Dismore: My hon. Friend makes a very important point, and I shall consider later how someone can be said to have knowingly accepted a risk. My hon. Friend makes a point about exclusion clauses. At present, such clauses are not permitted in English law, primarily because of the Unfair Contract Terms Act 1977 and other legislation. In fact, we shall consider a separate amendment on unfair contract terms, so I will not go into that in detail now, but he refers to United States litigation. Comparisons are often made between this country and the US. I simply say that, pro rata, on a comparison of gross national product, compensation claims overall in this country are only a third of what they are in America. That gives the lie to those who say that we are going down the American route.
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Lawrie Quinn: Does that not also suggest that under 18-year-olds would probably need consent from their parents before they could take part in such activities? In some cases, parents might not receive advance notice of the activity taking place.
Mr. Dismore: My hon. Friend makes an important point. We heard earlier about the risk of bureaucracy, and I suspect that there would be an increase in that. If a 17-year-old wanted to engage in exciting activities, the net result would be that we should have to go through the whole parental consent process when, at present, we may not have to do so. There was previously provision for that in, I think, clause 2, which would be deleted by this group of amendments and new clauses, and it is bizarre that we should remove any debate about the age at which someone should assume responsibility for their own safety. I am concerned that the new clauses and amendments would make no provision for that at all. Far from trying to deal with a risk-averse society, we may be creating one.
The intervention of my hon. Friend the Member for Scarborough and Whitby (Lawrie Quinn) presaged the point about knowingly accepting a risk. I see great fun in the arguments about what we mean by "knowingly accepted", never mind "risk", which we shall come to shortly. How are we supposed to know that a risk has been "knowingly accepted"? I suspect that the only way to do that would be through some form of written undertaking. Again, that would create bureaucracy. The docket that the hon. Gentleman wished to introduce would come in through the back door. Instead of the safeguards that were originally in clause 2, we would have a free-for-all, again involving lawyers who would, again, make vast fees drafting how the "knowingly accepted" dockets would apply to particular activities. Again, that flies in the face of what the hon. Gentleman is trying to achieve.
We must ask what "knowingly accepted" means. The existing law on this is very clear and, in this context, relates to agreeing to waive a claim. It is summed up by the Latin maxim "volenti non fit injuria", which is set out in "Clerk & Lindsell on Torts". Three things must presently apply if volenti is to be used as a defence - and it is an absolute defence. First, the claimant has to agree to waive the claim against the defendant. Secondly, the agreement must be voluntary and not the result of compulsion by the defendant or external circumstances. Thirdly, the claimant should have full knowledge of the nature and extent of the risk.
12 noon
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Lawrie Quinn: I am listening closely to my hon. Friend. Unlike him, I am not a lawyer; I tend to be a practical, down-to-earth person. Is it his interpretation that in planning a weekend scout camp, a scout master would have to lay out a detailed assessment before parents or guardians saying which activities would be dangerous or carried a risk? That could mean the scout master having to carry out risk assessments in respect of the whole weekend - the journey to the camp, songs around the campfire, pot-holing activity or whatever else. Does that not support my hon. Friend's statement that there would be a paper chase?
Mr. Dismore: My hon. Friend is absolutely right. The original Bill - we see amendments before us that seek to take it to pieces - talked about statements of inherent risk. The hon. Member for Canterbury proposes that the House should remove such statements from the Bill, presumably to get rid of the paper chase that has previously been criticised. He is creating a paper chase with knobs on by the back door - at least a statement of inherent risk has a checklist of things that should be in it.
No one will know what the system means before a few cases come to court. Lawyers would draft documents for people to sign, and volunteers would be even more confused than they are now, because of the need for a clear acceptance of risk. The hon. Member for Canterbury has shot himself in the foot by proposing to take out the statement of inherent risk.
Lawrie Quinn: He should have done a risk assessment of his Bill.
Mr. Dismore: The hon. Member for Canterbury has created another problem because the current legal definition of volenti will inevitably be transported into paragraph (3). He could have introduced a clause stating, "acceptance can be signified orally", although I suspect that most organisations would still want the belt and braces approach if they were to rely on that particular defence.
We have dealt with the issue of "acceptance", so we come to the question of "knowing". "Clerk & Lindsell on Torts" says that if it is alleged that the claimant was responsible for his own injuries, it must be shown that he was fully aware of the relevant danger and consequent risk. I will not read out the whole passage, because that would be out of order, but paragraph 383 states:
"Knowledge must be full and complete. The defendant must demonstrate that the claimant had full knowledge of the nature and extent of the risk which he is alleged to have assumed."
It is not enough to show that danger was apparent or that in a general sense the claimant was aware of the risk.
There is the argument whether that knowledge is objective or subjective, which brings us to people with disabilities. For example, people with learning disabilities may or may not be able to assume knowing acceptance of risk. Without a definition of "knowing", we are thrown back on to the law, which requires an extremely full explanation of the risks.
One problem identified by my group of amendments is that clauses 2 and 3 refer to risk in only a roundabout way. The problem is that there is no requirement to explain all risks. Returning to the canoeing accident, if one goes on a canoeing expedition, there is a risk that one may drown, which is what happened in that case. Are we saying that the people involved in that case should be excluded because they knowingly accepted the risk of drowning?
There are real problems of causation in law. Does the Bill refer to all the risks involved or just some of the risks? If some of the risks must be explained, why does the Bill not say so? If only some of the risks must be explained, a threshold should be included to cover the most important risks or the risks that can be readily identified. Again, I return to my point that the provision is a lawyer's field day, because we will have those arguments in court time and time again.
Lawrie Quinn: I am grateful to my hon. Friend for being so generous. In the case that he mentioned, four children drowned and there was a problem with a lack of early understanding of a weather forecast about flash floods. To what extent does new clause 6, which refers to expert evidence, help the hon. Member for Canterbury (Mr. Brazier)? A scout master cannot be expected to be a meteorologist or, for example, to understand the consequences of topography and geology in a limestone landscape.
Mr. Dismore: My hon. Friend has foresight, because I was about to come on to that in the context of new clause 29. At this point, we get into the argument about what is actually meant by
"taking reasonable care or exercising reasonable skill."
Does the new clause try to reinterpret existing law or to create new law? The existing law is very clear: it says that a certain type of professional is expected to exercise the level of skill that would go with being such a professional. As a lawyer, I am expected to know the limitation period for a personal injury claim, as is a trade union official. However, the average man in the street is not expected to know that. If someone hobbles into the pub on sticks after a football accident, sits down at the bar and says, "I've had this accident.", and his mate says, "Don't worry about that - you can sue for years afterwards.", there would be no problem. However, if I said the same thing and offered to take the case, I could be sued because I had not exercised the reasonable skill of my profession.
Similarly, outward bound instructors would be expected to exercise the reasonable skill that goes with that profession. Would the new clause exempt them from exercising that level of skill and apply the test of the apocryphal man on the Clapham omnibus by saying yes or no, because that is the general test of reasonableness in personal injury law? Would volunteers who assume responsibility - for example, lifeboat men or cave rescuers - be exempted from having to exercise their professional skills and have only to exercise the skills of a bumbling idiot to avoid liability under clause 1?
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Lawrie Quinn: I am listening carefully to my hon. Friend's comments about reasonableness. I am sorry to revert to an earlier point, but I asked him about the measure's impact in the context of the Health and Safety at Work etc. Act 1974. He knows that legislation well; it is based on what is practicable. I think that my right hon. Friend the Member for Holborn and St. Pancras might have had it in mind. How does new clause 29 undercut the central and important principle of the 1974 legislation?
Mr. Dismore: That is an interesting question. My hon. Friend knows that there is argument, especially over the word "reasonable", which is incorporated in sections 1 to 6, about whether the 1974 Act complies with our legal duties to Europe. Subsequent pieces of legislation could well apply in these circumstances through Europe - through the six pack directives, and so forth - which argue that reasonableness should not be included in the provisions because it is open to such wide interpretation.
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Lawrie Quinn: I am listening carefully to my hon. Friend's references to subsection (5). Is there not also a problem with the reference to the "Secretary of State"? There is no reference to the devolved Administrations, and I presume that the way in which it is worded would remove its consequences for Scotland and Wales. Would that be a correct interpretation?
Mr. Dismore: I will need to check what the Bill says, and I think that my hon. Friend is right. Now I see that under clause 3 of the existing Bill, the Act would extend only to England and Wales. I know that that issue comes up, so at the moment there is no need to consult the devolved bodies. The problem is that we shall end up with a position in which different law applies in different places.
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Lawrie Quinn: I understand that if new clause 6 is not accepted, the Bill will allow a higher test of liability when providers have used a statement of inherent risk. The hon. Member for Canterbury (Mr. Brazier) has tabled amendments consequent on new clause 29. If new clause 29 were accepted, would not new clause 6 be unnecessary?
Mr. Dismore: The difficulty lies in new clause 29(1). If it had made the specification that I mentioned earlier, new clause 6 might not have been required; but we need to consider the test being applied, and we need to provide an opportunity to overcome the defence that might be advanced under new clause 29 by demonstrating, with the help of expert evidence, that what is being said is not correct. Expert evidence can be very helpful in cases of sporting or outward-bound injuries. When I was practising, I dealt with cases in which such evidence had to be used - one involved horses, another motocross - to explain what was right and what was wrong, and what constituted a test.
If new clause 29 is passed new clause 6 will of course become otiose, as clause 2(6) of the Bill will be deleted if the hon. Member for Canterbury gets his way with his new clause and one of his amendments. But the argument remains valid, even if new clause 6 has to fall because new clause 29 goes through. As has been said, these matters should be argued through in Committee, given the many faults that have come to light.
Lawrie Quinn: Assuming that I have understood my hon. Friend's argument correctly, if there were a failure to maintain, or to use in accordance with the manufacturer's instructions, equipment used in the activity in question, the need for an expert review of the consequences of that failure would be paramount.
Mr. Dismore: My hon. Friend is right, and he has identified the issue in a nutshell. We need to consider the technicalities of what is or is not suitable for the purpose in question; indeed, I have some amendments that deal with that issue in a little more detail. So there are problems that could be addressed by new clause 6, but I assume that the hon. Member for Canterbury will resist it.
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Lawrie Quinn: I intervene again in an attempt to understand the true purpose of new clause 11. My hon. Friend seems to be suggesting that a preliminary visit and test of the volunteer activities in question would be necessary, which would probably involve the volunteer leader's replicating the activity in advance. Would not such reconnaissance involve an inherent risk to the volunteer leader?
12.45 p.m.
Mr. Dismore: My hon. Friend makes an interesting point, but I suspect that such people would still be covered by employer's liability provisions under the Health and Safety at Work, etc. Act 1974, depending on whether they are employed. The real issue is the need to conduct proper assessments. If a proper assessment is done, there is no problem with producing a statement of inherent risk, subject to some suggestions that I shall make later about what should be in it. If there is no statement, the inference has to be that a proper assessment has not been done. In defeating a claim, a court should be able to take into account the existence or otherwise of a statement. If in the civil courts a risk assessment is required - for example, under health and safety management regulations - and one has not been conducted, the absence of such a statement is in itself evidence that can be used in supporting a claim. What I am suggesting in new clause 11 is the mirror image and it is intended to level the playing field, to use the sporting analogies again.
I dealt with new clause 12 when I spoke about exclusions and the size of claims, so I want to move on to new clause 16. It takes us back to some of the points that my right hon. Friend the Member for Holborn and St. Pancras made earlier. In particular, there is the blurring of distinctions between organisations that people generally consider to be voluntary - the scouts and guides, for example - and those that are effectively big business masquerading as voluntary organisations.
I mentioned earlier that there are about 4,500 charities with a turnover of more than £1 million. I do not believe that they can, by any stretch of the imagination, be seen as proper voluntary organisations in respect of what the Bill is trying to achieve. If there is a contract to provide services or a course and someone pays money in return for which a course is signed up to - a bit like a package holiday, I suppose - I think that we are looking at a proper commercial transaction, which should be backed by insurance and proper legal rights for the people who attend the course. After all, someone is making money out of it. Reducing the insurance premium, as the hon. Member for Canterbury wants, is allowing someone to make even more money out of it by reducing the rights of the people involved. It becomes a recipe for cutting corners and allowing people or children to be injured. That cannot be right. First and foremost, if we go back to the basic principles of what the Bill is trying to address, we should look into the informal arrangements that would apply and not look at cases where money changes hands in accordance with usual commercial transactions.
Lawrie Quinn: In another attempt to appreciate the thought processes behind new clause 16, may I take my hon. Friend back to his home town of Bridlington, where the Royal Society for the Protection of Birds, a charity, runs cruises that allow people to watch the birds off Bampton cliffs? Does my hon. Friend believe that, under the proposals, people involved in that activity would be waiving their right to any compensation if there were a mishap - hopefully there never would be - during the course of the voyage?
Mr. Dismore: My hon. Friend could well be right because there is a contractual arrangement in place. On the other hand, I have occasionally gone to watch the birds at Bampton cliffs and paid a donation to see them. That is different, because there is no contractual arrangement in that case. If I were to trip up and fall in that context, that would be hard luck, but where there is a commercial arrangement in place, that is a very different kettle of fish and we are effectively talking about business. I believe that new clause 16 deals effectively with that point and I am sorry that the hon. Member for Canterbury feels unable to accept it.
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Lawrie Quinn: Would my hon. Friend's definition of local authority be extendable to national parks? Many volunteer activities take place in national parks, and I am concerned that under the Bill they, too, would escape liability.
Mr. Dismore: My hon. Friend has spotted a flaw in my new clause and he makes an important point. If the Bill makes progress, perhaps it could be picked up in the other place. National parks are big business, and they probably would not be covered by new clause 19 or a later amendment on contractual relationships. I have tried to address the issue of scale in my amendments.
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Lawrie Quinn: In England and Wales, some 8 to 9 per cent. of the land mass area is covered by national parks, so that is a large hole in the Bill's provisions.
Mr. Dismore: My hon. Friend makes an important point. As I recall, we have just announced another national park, extending the area still further. National parks might be caught by the provisions relating to land owners in new clause 18 on occupiers liability, but the Bill goes beyond that. If the Bill were to progress, we would certainly have to look a little closer at that issue.
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Lawrie Quinn: New clause 28 is most important. In a previous life, I was very involved in putting together risk assessments for engineering. In general, they require a clear audit trail and a checking process, so is not my hon. Friend somewhat concerned about the fact that his new clause does not specify those necessary and important aspects, which would ensure that the risk assessment was verified and checked by a more experienced person?
Mr. Dismore: My hon. Friend makes an important point. Paragraph (d) in fact requires documentation of the risk assessment, so there would be a written record, and I would expect that a sensible professional body, such as is referred to in paragraph (c), would set out how an audit trail should be followed.
My hon. Friend will also note that I have tabled amendments that deal with setting up a proper audit trail, by keeping proper records and so on. No doubt, we will come to that amendment later.
1 p.m.
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Lawrie Quinn: I thank my hon. Friend for giving way once again, but may I chide him for the drafting of amendment No. 106? In an earlier part of the proceedings, he went to some length to try to protect the Secretary of State from extra work. It seems somewhat illogical that, under that amendment, he is trying to give the Secretary of State some additional work. Regrettably, I will not be able to support that amendment if it goes to the vote.
Mr. Dismore: My hon. Friend throws my argument back at me. I am not particularly fazed by that, as I am offering an alternative. I think that we need a definition of "activity" and I have come up with a couple. I do not have access to my hon. Friend the Minister's legal team nor do I have access to the High Court judge to help me with my drafting that my right hon. Friend the Member for Holborn and St. Pancras and the hon. Member for Canterbury mentioned. I have done my inadequate best as a personal injury lawyer to try to come up with a definition. Someone may well come up with a better definition, and that is why I have left the option open - as an olive branch to the hon. Gentleman - to allow the Secretary of State to come up with one.
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Lawrie Quinn: Earlier, my hon. Friend defined "minor" as covering those up to the age of 18. Does his amendment imply that he is more comfortable with defining it as those up to the age of 14, since further education can generally start from around that age?
Mr. Dismore: I have a later set of amendments dealing with the question of age and at what stage a defence may be used to defeat a claim by a minor, so we could return to the matter at that stage. Perhaps I am adopting a belt-and-braces approach. My hon. Friend raises an important point about the age of responsibility and the age at which a minor becomes aware and can accept and understand risk. I accept that I might be arguing against myself in relation to further education and higher education activities. I offer that olive branch to the hon. Member for Canterbury.
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Lawrie Quinn: It is often mandatory for people to undergo certain activities to gain sufficient experience to progress to a higher level in voluntary organisations - the level of leader, for example. How does that fit in with this definition of "compulsory"?
Mr. Dismore: My hon. Friend's question refers to some of the points that I made earlier. The Bill currently provides a defence in relation to voluntary activities. However, volunteers might also be engaged in promoting compulsory activities. I think that I am right in saying that school sports are compulsory, for example, and a volunteer could come in to help the school with compulsory games. As the Bill stands now, if the games were voluntary - out-of-hours games, for example, such as extra rugby or football training - a statement of inherent risk would have to be issued. If exactly the same games were compulsory, however, no such statement would be needed. That is a bit back to front, because we should be concerned with the nature of the activity rather than the question of compulsion. We are talking as much about protecting the person engaged in the activity from being hurt as about protecting the volunteer from being sued. The hon. Member for Canterbury has missed a trick in terms of the way in which the Bill deals with compulsion.
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Lawrie Quinn: The amendment to which my hon. Friend is referring implies even more red tape, an audit trail, an inspection, and a licence to perform such services, which presumably could be taken away if such standards were not maintained. How would enforcement work in practice?
Mr. Dismore: Regrettably, the enforcement is what will happen if there is an accident. In the end, it will be for a civil court to test whether the defence provided by the Bill can be relied on by the defendant, which is the voluntary organisation concerned. A court would then have to determine whether the correct steps had been taken, and whether the statement of inherent risk, or the risk assessment, had been properly drafted.
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Lawrie Quinn: Does it not also pose the question of the potential age of the leader of the activity? In many voluntary young people's groups - scouts and guides, for example - part of the challenge for the young person is to advance by taking on more responsibility. We could end up with a contradiction if the young person leading a group activity does not have enough competency in the Bill's terms.
Mr. Dismore: My hon. Friend has hit on a very important point. I recall being in the sea scouts and I was often engaged in leading activities about which I knew far more than the parents. I recall one occasion when I was about 17 and I cancelled a sailing expedition that I was leading because the weather was so bad. A parent came up and played hell with me because I had cancelled the activity. He simply could not understand why I had cancelled it. I told him that there was a force 9 gale blowing and he said, "What's that got to do with it?" That is a clear example of what my hon. Friend is illustrating: sometimes people do not think things through because they do not understand the risks. Sometimes someone under 18 might have to explain things to people who are over 18. I have not tabled an amendment to cover that point, which is unfortunate, because my hon. Friend has made a very important point. If the Bill progresses further, I hope that it might be dealt with in the other place.
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Lawrie Quinn: When my hon. Friend spoke to volunteer organisations in his constituency, did they, like the ones in my constituency, express the view that they faced large administrative burdens and red tape in undertaking their fund raising and other activities? Does he think that the Bill will add to those burdens rather than reduce them?
Mr. Joyce: No, I do not. It is fairly straightforward. A certificate would be signed off and the questions of who would sign it and the ages at which children would have to be signed off could be understood quite clearly. The Department could stipulate such matters. It is relatively straightforward to ask for a certificate to be signed off, and that could encourage more people to join and help organisations.
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