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The Earl of Erroll: I should like to say a few words in the spirit of the noble Lord, Lord Hunt. I must apologise for missing Second Reading because I was unable to be here. As a result, I will not make a Second Reading speech because I do not need to. There are amendments that cover most of the points that concern me. My main concern is that Clause 1 is not strong enough on the defence side. I am a member of the all-party group on adventure and risk in society. It is a great shame that we were not consulted about the wording of Clause 1. It was specifically withheld. We were told that we would first see it when the Bill was published. There was a bit of unnecessary secrecy. It might have been helpful to have a proper discussion beforehand so that various points could have been thrashed out. We could have seen if some of the concerns could have been met.

Those concerns are real because we need to get certainty into the minds of school governors, volunteers and various other bodies that they can permit some adventure and risks to be taken. I do not think that Clause 1 goes far enough. For instance,
 
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leaving out the breach of statutory duty I now realise is a very important missing element from this clause. It is no good saying that there is no evidence of trips being cancelled. I know perfectly well anecdotally that there is. My wife is a school governor of a state school in Bedford, which has certainly put a ban on several school trips and has had to cancel various activities. I have heard exactly the same thing from various other schools. So it is happening, even if researchers try to claim that it is not.

One needs to be aware that all school governors and volunteers for small groups are not skilled enough or bureaucratically minded enough to carry out risk assessments which will stand up to subsequent detailed examination in the courts or for health and safety purposes. It is very difficult to carry these out. I have been helping my wife with one for her farming estate, which is a nightmare. We are at 108 pages and climbing. One has to know so much about everything, but it is impossible to know all the various things that one has to take into account. Something will also be missed.

That also applies to statutory duty. Do you really know every statute that affects you? Can you be certain that you are not breaching a statute? It is impossible. But, of course, in the cold light of a court, with hindsight, it is terribly easy to pretend that you should have known. Very often people who indulge in adventurous and risk-taking sports are not box tickers. They are not procedural thinkers. They are leaders—people who want to go out and do things. Some people would say that in itself is risky, but if you are going to take part in adventures that is the reality. We need to stiffen up this clause, particularly on breach of statutory duty.

There have been perverse judgments through the courts. A couple of judgments virtually said that the group leader should have physically restrained adult idiots or their children. Very often then you have the problem of when does assault start. How much physical restraint are you allowed to use when someone who is himself a youth leader jumps on to something with his helmet not properly fixed? There are huge problems with the current system and with some perverse judgments from the courts. It is not good enough to say that the courts know best. They clearly have shown with several judgments in the past that they do not. Amendment No. 1 should be accepted.

Lord Chorley: I do not want to make a Second Reading speech either, although I was not able to take part in the Second Reading. I do not want to take up any time at this stage, just simply to echo everything that my noble friend Lord Errol has just said. We seem to be sitting on opposite sides of the Committee; I suppose that shows that we are Cross Benchers. I warmly support everything that he said.

Lord Lucas: I wanted to take the chance of the first amendment proposed by the noble Lord, Lord Hunt, to lay out some general principles and see to what extent the Government are in accord with them.
 
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I think it would be helpful in dealing with my later amendments if I understand the background that I am looking at across the Table. As the noble Lord, Lord Hunt, has said, this is not a particularly adversarial procedure.

I would like to see a society where people took proper responsibility for their own actions and where adults and those over the age of 16—if I can still call them children, given that they have a lot of responsibility in the world—were allowed to take the consequences of the actions that they take having been given that responsibility. Many of the examples that we have seen in court judgments seem to imply that adults and older children have no ability to take responsibility for their own actions, and when they choose to behave like bloody idiots the consequences of what they do fall on other people. That is extremely damaging to society. It is a trend which, if we allow the law to continue as it is, will inevitably get worse, and I applaud what I understand as the Government's interest in reversing that. I would like to know whether the Government agree that people taking full responsibility for their own actions, wherever that is reasonable, is what we should aim for.

The second thing that I would like to achieve is that those who are liable to be sued for negligence should know what it takes to avoid that suit or be able successfully to defend it. You can never stop people suing, as Marlborough College found out recently. You can have some completely unreasonable law suits going on at great length, but as long as you know where you are, you can feel solid in the position that you have taken, what you have done and the procedures that you have followed. It is clear that even in the highest ranks of the law people do not know where they are. I attended a seminar at the Law Society given by very senior lawyers, and we were treated to a five-minute lecture at the beginning on what to do in the case of the most obscure disasters that might happen during the course of that seminar; almost to the toast burning. It was absolutely ridiculous. If lawyers do not know what the proper procedure is in these things and how to behave like adults, surely the rest of us are going to feel frightened when we go for legal advice. We must produce a set of laws and regulations that make it clear where the boundaries are in ordinary language. Schools have neither the money nor the opportunity to learn the details of the law. They will want to receive briefing from their union and briefing from their council—"This is what you do; if you do this you are safe". Beyond everything else, something on that sort of order would bring premiums down, which is sorely needed as they have begun to get extremely expensive.

The last thing that should be done is to make it easier to make an apology. I do not see that in the amendments, but maybe I am being blind. It is what people want. The noble Lord, Lord Hunt, has it already. I did not have my specs on at the right time.

Lord Hunt of Wirral: It is Amendment No. 20.

Lord Lucas: Thank you.
 
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Lord Goodhart: It might be helpful if I make a short intervention to explain my outlook on the amendments in Part 1. I differ from the previous speakers as I have serious doubts whether Clause 1 should be in the Bill at all. I will explain that when we discuss Clause 1 stand part.

Since the decision of your Lordships' House in Tomlinson v Congleton Borough Council the law has about got it right. It is quite impossible to do what the noble Lord, Lord Lucas, has just asked and to spell out all the circumstances in which anybody could possibly be guilty of negligence. The question of what are reasonable acts and what is a reasonable duty of care depends so much on the facts of the case. You have to consider what is reasonable.

So far as I am aware, the perverse decisions that have been referred to all predate the Tomlinson case. Now the problems lie in the misconception of the law rather than in the law itself. Other problems arise elsewhere which we need to look at very seriously—I shall make one or two suggestions on those later—regarding the costs of litigation and the effect that has on insurance premiums. I suspect that in a very large number of cases, "a desirable activity"—to use the phrase in Clause 1—has been withheld because of the insurance costs involved.

The Government say that Clause 1 reflects the existing law but does not change it. I hope so. I am therefore opposed to any amendments to Part 1 which would change the law—which covers a number of these amendments. It does not cover Amendment No. 1 which seems to me in the circumstances to be an appropriate amendment to be made to the Bill as it would clarify what is perhaps an ambiguous situation. I have no doubt that the measure should apply to breach of statutory duty in the same way as it does to negligence at common law.

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