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Playing the blame game

Simon Jenkins

No-win-no-fee may have enriched lawyers, but it has banished common sense from the public arena

You ungrateful fools. Can’t you see the next menace from which the Government is trying to save you? No sooner has Tony Blair rescued the British people from weapons of mass destruction, than he has a new threat on the horizon. It falls from Heaven on our dearest little ones in the playground. It paralyses, blinds and chokes its victims. It may be no bigger than a baby’s fist, but this pilule of poison is death on a string. The conker has begun its onslaught in the North, from Clackmannanshire to Carlisle, from Stirling Castle to Egremont. The head of Cummersdale Primary has armed his infants with eye goggles. Norwich is reportedly felling its horse-chestnut trees to save children from overhead bombardment. Now the Stirling Royal Infirmary has confirmed the worst. Its dietary SWAT team warns that the skin of a conker, if hit by another and breached thereby, might possibly release moisture which, if breathed in by a child with a nut allergy, might cause a reaction, even if not eaten. This is health-and-safety speak for “conkers kill”.

First, I have news for Cummersdale Primary. If it thought that goggles offered protection it is wrong. Hertfordshire County Council tried goggles as a way of helping nervous children get used to swimming. Its health and safety advisers were appalled. They pointed out that goggles, when being removed, can “spring back and hit children in the face” — and banned them altogether.

There are plainly grown men drawing public salaries who sincerely believe that unless conkers are banned children will collapse in playgrounds across the land, clutching their throats, their heads bruised and faces lacerated from retaliatory goggle strikes.

Bureaucracy has brought us close to madness. Exercise is treated as a potential lethal activity in which there is no such thing as an accident. One teacher has been imprisoned for “allowing” a child to die on a mountain walk. This week, another is being prosecuted for “manslaughtering” a disabled child by failing to see her drowning in a swimming pool. This use of words is obscene. It is health and safety terrorism by secure professions, such as inspectors and lawyers, to scare front line ones into denying help to the needy.

A year ago the Isle of Wight was stung by a no-win-no-fee law firm for £10,000 when a child happened to break an arm in a public playground. Every playground in Britain faced closure until a High Court judge reversed the absurdity. At the same time it took five law lords and vast sums of money to salvage the case of Tomlinson versus Congleton Borough Council, when a boy trespassed, dived into a local lake, broke his neck and sued the council. Common sense should not need such extravagant defence.

There was a time when governments encouraged schools to teach swimming as an aid to child safety. It is now a public menace. Water gets in eyes. Water drowns people, more than 400 a year. Under water is that legal cloth-of-gold called “the bottom”, where lawyers swirl like sharks waiting for a faulty dive. Soon all swimming pools will be seen as death traps. France has passed a law demanding that, however private, each pool must have a metre-high locked fence as of January 2006. This will become EU law and Britain will have to follow suit. Presumably, the Crown will have to surround the coast of Britain with locked fences on pain of an action for negligence before the European Court, should anyone drown.

Nobody takes responsibility for any of this. Chastise the Health and Safety Commission for hysterical risk aversion and it will blame everyone else. It blames ambulance chasers, the courts, local government, hospitals and a greedy public. Yet it is the Commmission that has demanded a safety audit of every graveyard in the land after three children (in ten years) have been killed playing on gravestones. That puts every church at risk of litigation. Some of the loveliest churche s are now marred by red-and-white plastic tape as “at risk”. Meanwhile, church repairs have been made ten times more expensive by the Commission’s refusal to permit ladders for roof repairs.

If the HSC did not make such rules for “workplaces”, lawyers could not use them as benchmarks for litigation elsewhere. The cult of risk aversion now permeates the public sector. The health and safety mafiosi — their decisions answer to no minister — claim to manage risk, not eliminate it. Its subjects need only take “reasonable” precautions. This may be the intention. But ask any teacher, youth worker or volunteer of the result. They live in dread of being sued or fined. Schools, sports clubs, charities and fêtes are crippled by insurance premiums, money which they should be spending on those they are trying to help. One estimate is that £2 billion is now leaking out of public services into the pockets of lawyers, insurers and litigants. Nobody is lifting a finger to stop it.

I have no doubt that many others are to blame. No-win-no-fee litigation, introduced by the Tories, may have made a few people richer but it has been a litigious disaster. It is polluting justice and those administering it. Lord Falconer should end it at once. The Royal London Hospital now gives office space to a no-win-no-fee firm to persuade those entering its accident department to sue someone, with the hospital getting a cut of the profit — that is the blame culture at work.

The courts are in on the racket. They admit suits that no sane person would allow. Why should taxpayers pay judges to hear pupils demand compensation from a school when they fail to pass their A levels? Why should a court waste time and money on a constable suing his own police force for the stress of enforcing the cannabis laws? The High Court may throw some such cases out. But what responsible official dares take that risk with public money? It is safer to ban the conkers and shut the swimming pools.