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Lord Hunt of Wirral: I am in complete agreement with my noble friends Lord Skelmersdale, Lord Lucas, Lord Eccles and Lord Erroll—the Minister has not really satisfied us yet. It is interesting to note that no one has spoken in her support. That is probably because we are united in our belief that we are here to enact laws which are certain, or, indeed, which make the position of the potential litigant and the potential defendant much more certain.
In dealing with the previous amendment, the Minister said that it is very clear what courts may take into account. However, in replying to this amendment, she steered a little bit away from that very firm view and introduced a note of uncertainty regarding what they may take into account. The noble Earl said that the courts could take this matter into account and then dismiss it as irrelevant. That is a valid point. That is a very good argument in favour of the amendment—to stipulate that the judges must take it into account. If, indeed, the decision in Tomlinson is that the courts must take this into account, we are weakening the case by introducing a discretionary power rather than maintaining the existing mandatory position where a House of Lords decision is binding upon the lower courts. Therefore, there is a degree of uncertainty about this, there is some doubt, and we shall have to return to the matter. But, in the mean time, in order to reflect further, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Hunt of Wirral moved Amendment No. 3:
"(a) prevent an activity or the provision of a facility for the purpose of public benefit at all, to a particular extent or in a particular way, or
(b) discourage persons from undertaking functions in connection with such an activity or facility."
The noble Lord said: It may be for the convenience of the Committee if we discuss Amendment No. 13 with Amendment No. 3. I present the Minister
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with an alternative here. Amendment No. 3 would leave out the words which have already been referred to on several occasions. Clause 1 states:
"A court considering a claim in negligence may . . . have regard to whether a requirement to take those steps might—
(a) prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way, or
Amendment No. 3 seeks to replace the wording of paragraphs (a) and (b) with the following wording:
"(a) prevent an activity or the provision of a facility for the purpose of public benefit at all, to a particular extent or in a particular way, or
I believe that these amendments address the central weakness of Clause 1 as perceived from both sides of the argument; namely, that the phrase "desirable activity" is too widely applicable and could lead to perverse judgments of a different kind. As the Committee may know, there is similar Australian legislation, which is widely perceived to have been a success, where the phrase used is "social utility". I thought it would be helpful for the courts to have a specific example of sporting, recreational, educational activities, which we are coming to in a later amendment. But, even better, we have now sought to do what the Minister challenged us to do before, which is to produce an alternative Clause 1. We have done so in Amendment No. 13. I say to my noble friend Lord Erroll that we want to introduce legislation that will have a certain effect in the direction in which he is urging us to move. I commend Amendment No. 13 to the Committee.
What I have sought to do with Amendment No. 13 is to talk about the "purpose of public benefit". For me, that is right at the heart of what we are talking about. It is a far better phrase than "desirable activity". The main purpose of debate on the amendment is to question the source of "desirable activity". I would like to press the Minister on where she found the phrase. From having heard her speech at Second Reading, we believe that the phrase has been deliberately selected because no one can find any instance of it ever having been defined by the courts in the past; therefore, it carries no baggage with it. It must have taken a tremendous amount of effort to find a phrase that has never before been interpreted by the courts. In a way, "desirable activity" is a step into the unknown, because no one knows what it means. I want to give a few examples of that.
The Tomlinson case tried to define what the court was asked to interpret. Again, we are talking about breach of statutory duty under the Occupiers' Liability Act, but it is helpful to look at the example that Lord Justice Scott—the noble and learned Lord, Lord Scott of Foscote—cited, and to remind ourselves of what he said about whether the climbing of trees was a desirable activity. He talked about a visitor to a park who,
"climbs a tree, falls from it, injures himself and sues the Council. He would have been a trespasser vis-à-vis the tree. But a claim under the 1984 Act would be hopeless. The proposition that the
- Council owed him a duty to make the tree easier or safer to climb would be ridiculous. But the injured climber might contend that the presence of the tree posed an enticing, exciting and irresistible challenge to those visitors to the Park who, like himself, were addicted to the adrenalin surge caused by climbing high trees and that, consequently, the Council owed a duty to make it impossible for him, and others like him, to succumb to the temptation, to prevent him from becoming a trespasser vis-à-vis the tree".
The tree example is very interesting. I would like to hear from the noble Baroness whether she regards climbing trees as a desirable activity. Certainly it is desirable from the point of view of the tree-climber, but it is difficult to see that public benefit is derived from it. If it is not a desirable activity from the point of view of the general public, does that mean that the local authority must take positive steps to prevent the climbing of trees in its park? Would a requirement that a local authority had to put barbed wire around trees in its parks, or cut off the lower branches to discourage climbing, be contrary to the public interest? I believe so. In the circumstances of the Tomlinson case, probably equally contrary to the public interest would be the placing of layers of mud along the waterline of a lake to discourage anyone at all entering it, even just to paddle. That is what Congleton Borough Council did after the appeal in Tomlinson. Is that a desirable activity and is it contrary to the public interest? By using "public benefit", we are taking the right step forward.
In Amendment No. 13, we define "public benefit", but we did not do so as a massive exercise in parliamentary draftsmanship. Instead, we borrowed the meaning of "charitable purpose" from Clause 2 of the Charities Bill, which states that a,
"purpose falls within this subsection if it falls within any of the following descriptions of purposes".
"the prevention or relief of poverty . . . the advancement of education . . . the advancement of religion . . . the advancement of health or the saving of lives"—
and yesterday I saw the Medical Protection Society and was told that it was particularly important to set out very clearly that that is one of the activities dealt with by Clause 1. Amendment No. 13 continues by enumerating,
"the advancement of citizenship or community development . . . the advancement of the arts, culture, heritage or science . . . the advancement of amateur sport"—
and we shall deal with the question of amateur sport under Amendment No. 5—
"the advancement of human rights, conflict resolution . . . the advancement of environmental protection or improvement . . . the relief of those in need by reason of youth, age, ill-health, disability, financial hardship or other disadvantage"—
I am not at this point moving Amendment No. 13, but I am speaking to it because it links into the whole debate about "desirable activity". I detect that many Members of the Committee who have spoken share the view that "desirable activity" is in no way a term
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readily understood or understandable. An activity desirable in the minds of some will be undesirable in the minds of others. There are many who regard sport—and I almost said that some of my relatives take this view—as thoroughly undesirable, and have avoided it for most of their lives. Equally, there are those who regard music as thoroughly undesirable. Of course, that is very subjective. I know that there are those—and I refer not only to the Minister—who regard this clause, in its current form, as being beautifully crafted. But in whose eyes is it so? As beauty is in the eye of the beholder, so desirability is in the mind of the individual; but I shall not pursue that point too far, as I may have made it already.
In many ways this is an important debate because we are still in the dark about what "desirable activity" means. It may be that the Minister has discovered some case that has escaped my knowledge or has not come into the minds of any of those who have been very helpfully advising me, but so far as I can see there is no such phrase anywhere to be found. The Minister may well say that it is up to the courts. That is what satellite litigation is all about. I have declared my interest as a lawyer so many times that it is probably becoming repetitive, but I have to do so again because of the comments of my noble friend Lord Erroll, who a few moments ago—in a sudden, rather uncharacteristic outburst—reminded us of Shakespeare's words,
If one looks in a dictionary of quotations, one does not find very kind things said about lawyers; one of the kindest is that lawyers encourage two people to strip for a fight and then run off with their clothes. So lawyers are not exactly the most favoured profession, and I am in some difficulty in justifying my profession; but then of course I write articles from time to time, and I am a politician. I noticed in a recent poll that lawyers, journalists and politicians came right at the very bottom of public esteem—so this is probably my moment to raise those three capacities that describe me into a more publicly acceptable form.
I suppose my main argument is that it is not up to this Committee to make life much more lucrative for lawyers. Therefore, I do not really want to hear from the noble Baroness, "Please do not worry, because the courts will decide". By saying, "The courts will decide", we are not talking of a court case, one court case, because as Tomlinson showed it is only when important cases reach the Judicial Committee—I will refer to a number of other cases later—that the law is established with any certainty. So I suppose the Minister is asking for the Judicial Committee to be asked to define "desirable activity".
I have spoken to a number of fellow noble Lords who are Lord Justices, and they feel that it is the role of Parliament to define important phrases. Parliament should not throw it back at the courts and say, "In seeking to implement Tomlinson we are now going to create a completely new phrase, and you in the courts will have to define what it means". What activities fall within the term "desirable activity"? If the noble
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Baroness were to talk to any of the judges, she would find that they would quite like Parliament to enact law that is certain, law that is clearly defined and law that establishes the position without any degree of doubt. We have already discussed the fact that, sadly, none of the words that the Minister says in Committee or at any stage can be used by the courts to guide them unless there is some degree of doubt. At the moment I cannot see that there is any degree of doubt, because the phrase "desirable activity" cannot give rise to doubt because no one has queried it before. No one has even considered it; no one has interpreted it in the courts. Therefore, we are stuck with "desirable activity", and the noble Baroness says that the courts must decide what it is.
I hope that I have been able to demonstrate to the Committee that we should not leave this Bill as it is. It may well be that we should stiffen and strengthen the clause, as a number of noble Lords would like to do; or perhaps we should reject it altogether as the noble Lord, Lord Goodhart, is seriously considering because of his doubts about Clause 1 in its present form. I suppose in this Committee we are seeking to establish good law. Even though it may not amend the law, at least it ought to be readily understood. I can think of a whole range of activities outside, and I can easily go into many examples, although I have given tree-climbing as one example and I do not think I need add any more at this stage. We need to know what sort of activities are "desirable activities", otherwise what is the point of enacting Clause 1? I beg to move.
3.30 pm
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