Social Action, Responsibility and Heroism Bill

Public Bill Committee, 4 September 2014.

Adrian Sanders (Liberal Democrat, Torbay)

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.

Examination of Witnesses

Adrian Sanders (Liberal Democrat, Torbay)

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?

Andrew Slaughter (Labour, Hammersmith)

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?

Andrew Slaughter (Labour, Hammersmith)

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?

Andrew Slaughter (Labour, Hammersmith)

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.

Chris Evans (Labour, Islwyn)

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”?

Chris Evans (Labour, Islwyn)

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?

Shailesh Vara (Conservative, North West Cambridgeshire)

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?

Shailesh Vara (Conservative, North West Cambridgeshire)

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?

Shailesh Vara (Conservative, North West Cambridgeshire)

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?

Shailesh Vara (Conservative, North West Cambridgeshire)

Forgive me for interrupting, Mr Whitehead.

Shailesh Vara (Conservative, North West Cambridgeshire)

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.

Shailesh Vara (Conservative, North West Cambridgeshire)

How many, please?

Shailesh Vara (Conservative, North West Cambridgeshire)

Have 35 people given you their views, either in writing or by speaking to you?

Shailesh Vara (Conservative, North West Cambridgeshire)

Thank you. I am mindful that time is limited, and I am happy to give way to someone else.

Ian Swales (Liberal Democrat, Redcar)

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?

Stephen Metcalfe (Conservative, South Basildon and East Thurrock)

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?

Adrian Sanders (Liberal Democrat, Torbay)

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

Adrian Sanders (Liberal Democrat, Torbay)

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?

Andrew Slaughter (Labour, Hammersmith)

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?

Andrew Slaughter (Labour, Hammersmith)

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?

Andrew Slaughter (Labour, Hammersmith)

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?

Andrew Slaughter (Labour, Hammersmith)

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?

Andrew Slaughter (Labour, Hammersmith)

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.

Andrew Slaughter (Labour, Hammersmith)

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.

Stephen Metcalfe (Conservative, South Basildon and East Thurrock)

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.

David Rutley (Conservative, Macclesfield)

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?

David Rutley (Conservative, Macclesfield)

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?

Adrian Sanders (Liberal Democrat, Torbay)

If there are no further questions, I thank the witness for his evidence. That concludes our business for this sitting.

Social Action, Responsibility and Heroism Bill - Examination of Witnesses

Adrian Sanders (Liberal Democrat, Torbay)

We will now hear oral evidence from Kevin Myers, acting chief executive at the Health and Safety Executive, and Matt Wrack, general secretary of the Fire Brigades Union. Before calling the first Member to ask a question, I should like to remind all Members that questions should be limited to matters within the scope of the Bill and we must stick to the timings in the programme motion that the Committee has agreed. For this sitting we have until 2.45. Will the witnesses please introduce themselves for the record?

Andrew Slaughter (Labour, Hammersmith)

In this morning’s session we heard from two witnesses who took different views as to whether the Bill was good or bad—if I can paraphrase them—but they agreed on one thing: the Bill addresses a perception rather than a reality. It is a perception that people may be subject to litigation if they volunteer or act heroically. What are your views on the problem that the Bill seeks to address, and does the Bill address it?

Andrew Slaughter (Labour, Hammersmith)

Do I gather you are not keen on commenting on whether it is a good or a bad way to address the issue?

Andrew Slaughter (Labour, Hammersmith)

Do you think it changes the substantive law on negligence?

Andrew Slaughter (Labour, Hammersmith)

Yes. What is your experience of section 1 of the Compensation Act? How is that different from what is here?

Andrew Slaughter (Labour, Hammersmith)

On Mr Wrack’s point about heroism, do you understand what is meant by heroism in the context of the Bill and how it is to be interpreted?

Andrew Slaughter (Labour, Hammersmith)

Will the Bill make any difference to the way in which the HSE operates?

Andrew Slaughter (Labour, Hammersmith)

Mr Wrack, how do you see the Bill affecting your members? Clause 3 states:

“The court must have regard to whether the person, in carrying out the activity in the course of which the alleged negligence or breach of statutory duty occurred, demonstrated a generally responsible approach towards protecting the safety or other interests of others.”

I am not entirely sure what that means. However, it seems to mean that in the case of health and safety at work, say, the court would be invited to look at the overall conduct of the employer, rather than the conduct in relation to the specific acts.

Andrew Slaughter (Labour, Hammersmith)

Does that mean that you think that the legislation will dilute, enhance or make no difference to the employer’s responsibilities?

Andrew Slaughter (Labour, Hammersmith)

Do you have any other concerns about the Bill? We were discussing clause 3 specifically; I think that the intention of clause 4 is to give additional protection to persons—I assume that that includes the emergency services—acting heroically, and your members act heroically every day. Do you think that that clause is necessary? What effect do you think it will have?

Andrew Slaughter (Labour, Hammersmith)

You anticipated my next question. This morning, we were hearing about volunteering. Voluntary organisations were saying that they hope that the Bill will encourage more people to get involved or stay involved in volunteering because they would be less worried about the consequences. By analogy, in your situation that would mean that members of the public might be more likely to get involved in a dangerous situation, and you think that that could place your members at risk.

Andrew Slaughter (Labour, Hammersmith)

I had better stop there. I will come back if there is time at the end.

Stephen Metcalfe (Conservative, South Basildon and East Thurrock)

I want to pick up on a couple of points. Realistically the last thing on the mind of anyone acting in a heroic way by rushing in to save people trapped by a fire will be the contents of the Bill. So to conflate the two issues of whether someone will act heroically and the contents of the Bill is slightly misleading. However, it sends a signal that we touched on right at the beginning with you, Mr Myers, when you talked about the myth that has grown up around how health and safety works. The National Council for Voluntary Organisations told us earlier that people cite the consequences of things going wrong as a reason for not volunteering. The contents of the Bill remind them that there are protections for those who put themselves forward by volunteering and also for the organisations. Bringing all these things together must be a good thing and must aid you in debunking some of the myths that have grown up around health and safety. Would you agree?

Stephen Metcalfe (Conservative, South Basildon and East Thurrock)

Mr Wrack, in one of your earlier answers you talked about your fear that this Bill would dilute protection for firefighters. Can you expand a little on why you think it would do that?

Stephen Metcalfe (Conservative, South Basildon and East Thurrock)

Without going into the specifics of what sounds like a very sad case—I do not know whether he was instructed or took it upon himself to do what he did—do you think that those three lines in the Bill would actually undermine that principle? Does it not just remind people that there is a common-sense aspect to this and that if someone acted responsibly for whatever reason—let us say that he had had the right training—and had tried to rescue him when he got into trouble, he would not have been prosecuted? We are just reminding people that some common sense can apply in these particular cases.

Grahame Morris (Labour, Easington)

It is instructive to give some practical examples. I have been following the case surrounding the deaths of the two firefighters from the East Sussex fire and rescue brigade at Marlie farm and the compensation that has been denied to relatives of the firefighters who sadly lost their lives. Does the advice that the union has received from solicitors suggest that the Bill would improve that situation or make it worse?

Adrian Sanders (Liberal Democrat, Torbay)

I think we have exhausted the questions and that brings to an end this session. Thank you very much, gentlemen, for your evidence.

Examination of Witnesses

Adrian Sanders (Liberal Democrat, Torbay)

We will now hear oral evidence from John Spencer, president of the Association of Personal Injury Lawyers, David Johnson, president of the Forum of Insurance Lawyers, Simon Dewsbury, solicitor at Thompsons Solicitors, and Stuart Henderson, managing partner of personal injury, Irwin Mitchell. For this session, we have until 4 o’clock. Could the witnesses please introduce themselves, for the record?

Chris Evans (Labour, Islwyn)

Thanks for coming today. Mr Johnson, I see you are a Tottenham Hotspur fan. You look rather upbeat, considering. I was doing some research last night and I came across a case where somebody drowned because the emergency services could not make a decision to cut his leg off when he got stuck in a drain during floods. He drowned in front of them. I think that a lot of people remember that case. Do you think that an ordinary lay member of the public would be deterred from helping that man for fear of being sued, or do you think it is more to do with the emergency services, which have a duty of care to the public? Who is this Bill likely to help? Is it going to be the ordinary person on the street who acts on the spur of the moment, or will it be the emergency services? Who is it directed at?

Chris Evans (Labour, Islwyn)

The Bill will not fundamentally change the law. Would you say that kids have not been able to go on outings because of a lack of—I do not like using this word—common sense on behalf of the judges in the cases that you have mentioned, and that has had a detrimental effect on public perceptions through the media and other outlets?

Chris Evans (Labour, Islwyn)

I play golf in a fashion. I have a massive six-inch drive. I would not say that hitting a golf ball is particularly heroic. You obviously have a lot of experience, and this is a question for all the panel. Is there a specific case that you can think of where someone has undertaken a heroic act and been sued?

Chris Evans (Labour, Islwyn)

You should see the way I play golf these days.

Chris Evans (Labour, Islwyn)

The more evidence I hear, the more there seems to be what I would like to describe as a fish that is very slippery to get hold of. We all know the scenarios that people get into, such as people drowning and someone diving in to save them, then the person might get sued, or the one about the heart massage, when someone’s ribs got broken, and there was trouble about that. Would you say that, even though the aims of the Bill are laudable and supportable—I do not think that anyone would disagree with what is in the Bill—what we are looking for are words that are not there? We have not actually got hold of that slippery fish, we have not nailed things down with the Bill. Would you say that?

Chris Evans (Labour, Islwyn)

Yes, exactly.

Adrian Sanders (Liberal Democrat, Torbay)

May we move on to another question?

Stephen Metcalfe (Conservative, South Basildon and East Thurrock)

My question relates to clause 3. I want to go back to our golfer. I am struggling to see how he was held personally liable, so in my view something must have gone wrong. If he acted with responsibility, was not negligent and cried “Fore!”—the standard call on a golf course that people should know means a ball has gone awry—surely that example shows that something has gone wrong. Clause 3 states that the court must take into account whether someone

“carrying out the activity in the course of which the alleged negligence or breach of statutory duty occurred…demonstrated a generally responsible approach towards protecting the safety…of others”.

Surely the general approach there would have been yelling “Fore!” on a golf course. Would the golf course also not have been liable if the court had taken some account of clause 3? It strikes me that the measure would remind people that, since in that particular case neither had acted negligently in my view, people must take some degree of responsibility but cannot cover every single eventually.

Andrew Slaughter (Labour, Hammersmith)

I will start with golf, which seems to be the topic for the afternoon. There are two points from what you say, Mr Johnson. I was slightly surprised that you classed a golf course as something that exists for the benefit of society. That suggests to me either that this could be a very subjective judgment or a very broad definition. It seems to me that almost anything could be for the benefit of society if that is the position, and therefore we are in pretty vague territory.

The second and perhaps more important point is that I am not completely clear—I think I am with your colleagues, but not with your view—whether this Bill seeks to alter the law as it stands. It sounds to me that you would like to alter the law as it stands and that you are in a minority in that respect. That is a credit to you in holding your own and you may want to say a bit more about what you would like to see, but the general consensus from legal and non-legal opinion so far—the Secretary of State himself has been quoted—is that this is an exhortation at best. Mr Henderson said it is something the judges are already taking account of, which is usually what they say when they mean ignore. This is the crucial point. If this is a change, it is a significant piece of legislation; if it is not, it is just a confusing piece of legislation, isn’t it?

Andrew Slaughter (Labour, Hammersmith)

By redrafting, do you mean starting from scratch? Nobody here so far. I think the Law Society said this morning that it is unamendable. From your point of view, is it well intentioned but beyond redemption?

Andrew Slaughter (Labour, Hammersmith)

So you think it will do that?

Andrew Slaughter (Labour, Hammersmith)

That is what the Secretary of State says it is not trying to achieve. It is not seeking to change the law.

Andrew Slaughter (Labour, Hammersmith)

So your answer to my second question is—well, let us leave the golfers aside for a moment and take something less ambiguous: the school trip with teachers giving up their time voluntarily, when a kid falls down a mountain and gets killed, or something of that kind.

Andrew Slaughter (Labour, Hammersmith)

Let us take the example of clause 2, of a volunteer expedition where a child perhaps dies because they fall down a mountain. Should there be a lower standard in those cases, because there is a socially responsible action, than, say, if a similar thing happened in a commercial setting?

Andrew Slaughter (Labour, Hammersmith)

I did not say that.

Andrew Slaughter (Labour, Hammersmith)

What do the rest of the panel think about that?

Ben Wallace (Conservative, Wyre and Preston North)

On your last point, you do not mention the consequence of not doing something. Let us say that the carer has not been trained but the consequence of leaving the lady to lie in her bed and not sit her up is that the old lady suffers another type of injury, or is much more uncomfortable. There is an awful Hobson’s choice in the real world where people live. They might say, “I have not been trained; you will just have to lie there and that might make you suffer in a different way.” That is what we are trying to send a message about.

There are two sides to a coin, as you rightly said. I know everyone should be trained but we are getting to a society in which things are layered and layered. I am an ex-soldier. The personal injury lobby on whether we should be able to sue if we are injured in battle is still not resolved. It is a mess that I do not think will be resolved for quite a long time. It is a very difficult area and heroism leads into all that as well.

We do not want people to be have-a-go heroes but we do not want them to feel artificially prevented from relieving suffering or trying to help, when there might not be any other choice. We do hear stories where people say, “I am not going to do that,” and unfortunately someone dies. I think we must all agree that that is a problem. Do you agree?

Ben Wallace (Conservative, Wyre and Preston North)

Let me give you an example. An elderly grandmother has fluid on the lung. The grandmother has to sit up every few hours, otherwise the lung fills with fluid. For whatever reason, you are stuck in a traffic jam and ring your neighbour and say, “Could you just go and sit my mother up, please?”, and the neighbour goes next door and sits the elderly mother up, because if she does not the lung will fill with fluid and become uncomfortable. That person is not a nurse or a carer. If, in lifting up the elderly mother, the neighbour suffers an injury, are we really going to say, “Well, she wasn’t trained and you unreasonably asked her to do it, therefore she would be eligible for compensation”?

Ben Wallace (Conservative, Wyre and Preston North)

Before I ask a separate question, Mr Spencer, can I just also add that perception is also generated by fishing expeditions? We all have lots of constituents who run businesses, and so on, who get the lawyers’ letter from a guest who stayed at their bed and breakfast or pub, from a personal injury advertisement the guest has seen on the television. They are often very aggressive and very demanding letters that bear no resemblance to what happened, but they frighten many of our constituents. We all have case woes relating to such matters—not hundreds of cases, but lots of cases. I could mention genuine cases where that has happened in my constituency. That feeds the perception. It is not just the rulings in court, from the very few cases that go to court, but the less regulated, or the less well behaved, personal injury lawyers who give your industry a bad name, I would venture—not you two gentlemen, obviously. That does feed into it.

I want to challenge you, Mr Spencer, on your consistent line that the way to reduce the growth of the compensation culture is through education, not through legislation. You have said that quite a number of times. I sat through the Legal Aid Bill and the Jackson reforms and everything else. We heard from the personal injury lawyers and the associations that our legislative changes would not make a difference. Getting rid of referral fees and the changes to success fees were all unnecessary, and they would not make a difference. I suggest that that legislation helped overnight. The drop of 5.8% in insurance and other claims is, I suggest, directly related to those legislative changes and helped to change the way people come forward and the culture of compensation.

I do not think it should be left just to education. I would challenge the assertion that we do not have a compensation culture. We only have to look at the whiplash claims compared with the rest of Europe to see that there is something wrong with our system. We are all driving European-standard cars but we have an astronomical level compared with everyone else. The law is always involved in trying to shape or have regard to, in this case, a message of what we want in our society. That is what the Bill is trying to do. It is trying to send a message to challenge the perceptions and to ask our judges to have regard to this. You have made plenty of valid points about definition and everything else, and no doubt the parliamentary process will look at that. But we have to have a role in that.

Ben Wallace (Conservative, Wyre and Preston North)

That would be a criminal offence, would it not?

Ben Wallace (Conservative, Wyre and Preston North)

May I just correct you on that? From my memory of the legislation, it requires people working with young people to have certain levels of checks. They would not be exempted by this legislation. If you did not do that, you would be guilty of a breach of that legislation.

Ben Wallace (Conservative, Wyre and Preston North)

I am sorry, but on that example, the legislation is very explicit about who should and should not be checked and at what levels. Having general regard does not allow you to avoid your obligation under other legislation. You cannot just say—

Ben Wallace (Conservative, Wyre and Preston North)

This question is to anyone on the panel. Do you think that there is a place in today’s society for amateurism? Is it the case that everyone has to be professionally qualified or professionally trained, or nothing? A lot of volunteers do things in an amateur way—they do not have the time to do all the courses—for the benefit of their society.

David Rutley (Conservative, Macclesfield)

I am not sure whether you heard the witnesses this morning, but we heard from the National Council for Voluntary Organisations, which represents thousands of often small charities that are struggling to recruit people to lead young people or other groups who need support. I do not hear too much demand from the group except for Mr Johnson, who suggested that there should be some change to the law or at least some clarification. Given the scale of the challenge, however, how would you respond to the charge that most of you sound particularly complacent about the current situation?

David Rutley (Conservative, Macclesfield)

The fact that we are struggling to get volunteers to do a lot of socially good things, because of concerns about this type of activity.

David Rutley (Conservative, Macclesfield)

I am sorry. The specific question was—you have all had quite a lot of time to talk—about how you would respond to the charge from those who are looking in from the outside, and who are concerned about the degree of voluntary activity, that what you have said so far sounds quite complacent.

David Rutley (Conservative, Macclesfield)

On a number of occasions when giving evidence, Mr Henderson, you have suggested that the law is settled, as if that is a good thing, despite the fact that huge amounts of money and resources have gone into training and education. I do not have the figures in front of me, but all of us know from our experience in business and elsewhere that that funding has increased dramatically, but the problems still exist, as recognised by the voluntary sector. Is it not now time to give a further push, through the law, to help as part of that multi-faceted strategy about which you talk? I do not think that a settled law is a good enough reason to keep things as they are when there are clear challenges outside.

Andrew Slaughter (Labour, Hammersmith)

I have a few quick questions on wording. We were talking mainly about negligence cases. The Bill deals with negligence or breach of statutory duty. Do you see any distinction that should be made between the way it approaches negligence and statutory duty, in particular in the light of the fact that there has already been restriction through the Enterprise and Regulatory Reform Act 2013 in the way that statutory duty is dealt with in terms of compensation?

Andrew Slaughter (Labour, Hammersmith)

Why do you say that?

Andrew Slaughter (Labour, Hammersmith)

Only perhaps that it is otiose now given what is in the enterprise Act. Whether we like it or not, that Act is now law, therefore it is unlikely—

Andrew Slaughter (Labour, Hammersmith)

You mentioned the Compensation Act 2006. Do you see any distinction between what is said in clause 2 on “benefit of society” and what is said on “desirable activity” in the 2006 Act?

Andrew Slaughter (Labour, Hammersmith)

It is a matter for litigation.

Andrew Slaughter (Labour, Hammersmith)

I think we have had a good go at clause 3. Is there anything else that you want to add generally on a responsible approach? I share your concerns about the doors that clause 3 opens. If there is nothing more on that, I want to ask one further question on clause 4. The clause does not contain a definition of “acting heroically”. Do you understand what is meant by that term?

Shailesh Vara (Conservative, North West Cambridgeshire)

Mr Henderson, when my colleague, Mr Wallace, gave the example of the grandmother and the neighbour going to help her out, you were quite firm that that was something that would not be prosecuted, but that, of course, is not for you to decide as a lawyer; that is for others to decide, and they may take a different view. Mr Dewsbury, you gave the example of the traffic lights, where someone went through red lights and there were consequences afterwards. If someone had with them a lady who was in labour and was about to give birth and then shot the lights, that changes the circumstances as compared with the person who was going to a meeting, was half an hour early and could happily have waited. Mr Johnson, you spoke of the golf case, and initially there was a comment that it might be something to do with heroism. Then, there was the argument from my colleague, Mr Metcalfe, that it may well fit into the responsibility clause. Where I am going with this is that I would like to think—it has been mentioned—that all the cases depend on their facts. The Bill does not tell the court what decision to arrive at. I think you would all agree that the facts in every single case will be different, and it is for the judge to decide on the facts what decision to come to.

Throughout this session, all of you most of the time have come to a definitive decision as to what a judge would say or do in a particular case, without specifically saying that the judge would decide such and such. You have given examples and said, “This is the example and this is what the consequence would be,” but it is not for you to decide what the consequence will be; it is for the judge to decide. It is important to recognise that the Bill does not tell the judge what to decide. It merely asks the court to take into account certain factors. It is for the court to decide, and I put it to you all that each case will be different. I come back to the traffic light example, which is quite a contrast.

Adrian Sanders (Liberal Democrat, Torbay)

Order. Perhaps you will make this a question.

Shailesh Vara (Conservative, North West Cambridgeshire)

Certainly. Is it not for the judge to decide?

Shailesh Vara (Conservative, North West Cambridgeshire)

No two cases are identical.

Shailesh Vara (Conservative, North West Cambridgeshire)

But there are not. History has proven that there no two identical cases.

Shailesh Vara (Conservative, North West Cambridgeshire)

Right. Hypothetical and real are different, so we need to be clear.

Shailesh Vara (Conservative, North West Cambridgeshire)

Mr Dewsbury, I am still not clear whether you were speaking hypothetically or really, but I am speaking in the real world. You said that it would be for the judge to decide on the facts, and that is what the Bill says. It is not directing the court to come to any specific decision. Again, you are saying that a court may do this and a court may do that. It may, but it is for the judge to decide. That is why we have the appeal process and so on.

Shailesh Vara (Conservative, North West Cambridgeshire)

The critical thing is to recognise that although everybody has been conclusive with all the examples they have given, it is not for you to decide what the conclusion would be. It is for the courts to decide. The reading of this in Hansard will show that people are being unnecessarily presumptive. They are presuming what a judge would do, but I for one have full confidence in our judiciary. I am sorry that some of you have indicated that you do not have confidence, or at least you given that impression.

Shailesh Vara (Conservative, North West Cambridgeshire)

Mr Johnson wants to come in.

Adrian Sanders (Liberal Democrat, Torbay)

There being no further questions from Members, I thank the witnesses, on behalf of the Committee, for their evidence. We will move on to the next panel of witnesses.

Adrian Sanders (Liberal Democrat, Torbay)

We will now hear evidence from Amanda Brown, the assistant general secretary for advice, policy and campaigns at the National Union of Teachers, and Tracey Harding, head of health and safety at Unison. For this sitting, we have until 4.30 pm. Could the witnesses please introduce themselves for the record?

Pat Glass (Labour, North West Durham)

Amanda and Tracey, before coming here in 2010, I spent 25 years working in education in schools and local authorities, regionally, nationally and all over the country. I have yet to come across a case of a teacher or a support assistant failing to intervene when a child was in an emergency situation. In non-emergency situations, I know that there can be concerns, but in my experience good risk assessment, good medical and psychological advice and training generally mean that staff feel quite happy about intervening, whether it is administering drugs or physical restraint. Have I been asleep on the job, or is there a desperate need out there that I am not aware of?

Pat Glass (Labour, North West Durham)

In what way to you think the Bill will affect employer rights and protections? Can you give us any examples?

Pat Glass (Labour, North West Durham)

So you do not have any concerns about teachers or support staff—

Pat Glass (Labour, North West Durham)

Sorry, about them intervening when there are emergencies with children, but you think this may lessen the support around your members of staff.

Pat Glass (Labour, North West Durham)

It is not my area of expertise, but I have a perception that over the years there are fewer outdoor activities and that teachers take children away less than they did. How much of that is to do with concerns about being sued, and how much is to do just with general work load? That used to contribute to promotion, but not any longer.

Ben Wallace (Conservative, Wyre and Preston North)

Thank you for coming today. Can I use the point about care in the hospital and the paramedic, or perhaps even a less highly trained individual? Paramedics, as you know, are incredibly highly trained. If you were sitting in the room, you may have heard the example of a carer who effectively has a choice. They might not be prepared for the choice, but it has consequences either way. I used the example of an old lady with fluid on the lung: if they do not sit her up but keep her lying down, she may suffer, but the carer who happens to be on duty is a human being.

That is the problem. Human beings do not all say, “I haven’t got all my boxes ticked; I’m going to stand aside. I’m not going to intervene in a fight in a school, because I haven’t done the course on separating children in a fight.” People do that. By not doing something, they could cause something, and by doing something, they might hurt themselves, but often people do not put themselves before other people, especially in distress. Do you not think that the Bill, in that sense, gives them a defence and not just the employer? Your worry is that the employer will sidestep their employer liability, but if you accept that sidestep, based on this Bill, a similar defence is available for your member. Do you see what I mean? It could also protect your member individually.

Ben Wallace (Conservative, Wyre and Preston North)

In the example that you used of the paramedic, the paramedic could say to the court, “Could you have regard to the fact that I am doing it under clause 2, ‘Social action’, to benefit society and people, or that I was generally responsible? I have done my training. I have done as much training as I could do, sometimes. I haven’t done everything. I am not perfect, but no one in court ever is perfect.” That defence will be available for an individual as well as an employer.

Ben Wallace (Conservative, Wyre and Preston North)

On that point, maybe I can get a note or some clarification for the Committee. I am not sure that being employed by someone automatically removes them from their own liabilities. It is not a default setting that they are exempt from negligence just because they work for somebody, or maybe they are.

Ben Wallace (Conservative, Wyre and Preston North)

Who has the insurance, perhaps.

Ben Wallace (Conservative, Wyre and Preston North)

In other words, the lawyers will go where the money is. I think that is what you are saying.

Andrew Slaughter (Labour, Hammersmith)

I am intrigued by your answers so far, because I think the Government may say that your members are exactly the sort of people this Bill is designed to help. If you are engaged in teaching or voluntary activities outside school hours, or indeed in the course of ordinary employment, that should be more taken into consideration, as a consequence of the Bill. You seem to be saying that you are concerned that it will create a less safe environment in the workplace or outside. Could you tell us more about that?

Andrew Slaughter (Labour, Hammersmith)

So it is not that you think this will put less responsibility. I was asking, “Do you think this would put less responsibility on your members and, if it did, would that be good or bad?” You seem to be saying that you are just not sure what the effect of it will be.

David Rutley (Conservative, Macclesfield)

Thanks for coming along today and particularly for giving your thoughts on the impact this will have on employees. I do not have the same experience of work in schools as the hon. Member for North West Durham has, which is clearly quite extensive, but I was taken by the evidence given by the NCVO and the impact that current environment has on volunteering. That was mentioned in other evidence sessions. As a parent with four kids, I am also cognisant of the fact that parents play a huge role in facilitating activities outside of school, including some of the trips that we talked about. Are you seeing any evidence of the engagement of parents on the decline, perhaps by primary school or by secondary school, in light of the culture that we find outside? The NCVOs clearly are and I wondered whether that was true across schools.

David Rutley (Conservative, Macclesfield)

Would that be true for many of your members?

Ben Wallace (Conservative, Wyre and Preston North)

I would just like to clarify both your assertions about why you think it makes your members more vulnerable, not less. Are you saying that this Bill removes from employers—your view—their responsibilities and is more likely to put it on the individual members and it is for that reason they might be deterred? Is that what you are saying?

Pat Glass (Labour, North West Durham)

Can I clarify the current position? You talked about vicarious liability of the employer. My understanding is that if an employee does precisely what they have been trained for, and what fits in with the employer’s policies and a child gets injured, then the employee is covered by the employer’s vicarious liability insurance. But if the employee steps outside of that and does something that would not be covered by the policy of the authority or the school, or if they do something that they have not been trained to do, it would necessarily open up the employee to being sued. That is the current position. Is that right?

Pat Glass (Labour, North West Durham)

Right. On the subject of Mr Wallace’s old lady, I was involved with the case of a child who had breathing difficulties and brittle bones. The child needed exercise to clear the lungs, but by giving the child exercise bones were very likely to be broken, and were broken. In that situation, the tipping point is the medical advice that says, “On balance, you must give the child exercise, knowing that bones will be broken.” Employees are covered in that kind of situation, but if the employee does something that does not fit in with that, they would open themselves up. What is there in the Bill that will change that?

Pat Glass (Labour, North West Durham)

So it is more about definition than lack of clarity?

Adrian Sanders (Liberal Democrat, Torbay)

There being no further questions from members, I thank the witnesses on behalf of the Committee for their evidence today. That concludes our business for the afternoon.