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The Deputy Chairman of Committees (Baroness Gould of Potternewton): I appreciate that this is Grand Committee and we do not take votes, but for the record I have to say that if Amendment No. 3 were to be carried I would not be able to call Amendments Nos. 4 to 7 for reasons of pre-emption.
Lord Lucas: I see a great deal of attraction in the phrase "public benefit" in that it is understood; I find it immediately understandable. It seems to me to cover almost every circumstance where this rule should apply. I have severe objections to subsection (2) in Amendment No. 13, which is an entirely inappropriate list. Beyond anything else, it does not cover trees. Indeed, there was a celebrated case last year where a council was determined to cut down a conker tree because the kids were in the habit of climbing it to get conkers. That is exactly the sort of thing that we ought to deal with. A tree in a park is provided for the public benefit; that is sufficient to come in under this. I really do not think that we need this list; if we need a list it can be by way of illustration. I do not see the purpose of subsection (3) of Amendment No. 13, which rules in or rules out various categories of offender in a way that is unnecessary. Subsection (1) of Amendment No. 13 is wonderful, and I would very much like to understand the reasons why that was not the phrase chosen.
Lord Skelmersdale: In Amendment No. 13, my noble friend Lord Hunt made a brave attempt to elucidate the phrase "desirable activity". My noble
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friend Lord Lucas mentioned trees. I have a particular interest in trees, having trained as a horticulturalist, and I wonder what the tree was in the Tomlinson case. Perhaps my noble friend will tell me privately later on. One could argue that climbing a tree, falling out of it and breaking a leg is all part of education, but that is about as far as I can get with my noble friend's shopping list. I am on record as saying on various occasions that I disapprove of shopping lists, having been driven out of them as a Minister many years ago. That said, my noble friend Lord Hunt is absolutely right: there is no such animal, as yet, as "desirable activity". My view is that, as we have a plethora of lawyers in this Committee and the Minister has at least as many to advise her, it should be possible for us to produce for the courts an Act of Parliament that uses readily understandable language. What we have in the Bill now ain't that.
The Earl of Erroll: I ought perhaps to explain to the noble Lord, Lord Hunt of Wirral, that I was not really meaning to take a swipe at lawyers. I was trying to say, in an ironic fashion, that, for once, I would trust them to curtail such debate and not to spin it out in the courts. I have huge respect for their intelligence and think that they would find it fairly simple to knock out something irrelevant. If the clause said, "shall", they would immediately knock it out as irrelevant and not spin it out. I had meant to say that.
Notwithstanding that, it might amuse him that I have on my wall a cartoon from the 1750s of a cow with a very skinny chap pulling at the horns and another very skinny chap pulling at the tail. In between, there is a very fat lawyer sitting on a milking stool, milking away, and, on the other side, there is a very fat judge who is saying, "This is a very tricky case". I do not think much has changed in the public perception of these things over the centuries.
I shall speak to Amendment No. 13 because I found it to be a very interesting attempt to try to clarify "desirable activity". One reads the Bill thinking that it is trying to stop people being sued for taking part in adventure sports or adventurous activities, but it does not say that anywhere. In her response on Clause 1 about statutory duties, the Minister used the word "accountants". I suddenly realised that the Bill refers to negligence in general. It does not define that it is to do with adventure or risk. One could say that it might be highly desirable, and to the benefit of the general public, for an accountant to set up a scheme reducing the tax liability, but he might be negligent in the way that he did it. That could fall under the Bill because it says nothing about risk and danger. Maybe someone suddenly realised that Clause 1 can apply to any negligence in any field whatsoever, hence the challenge about how the provisions are narrowed down by "statutory duties".
Amendment No. 13 highlights that we are trying to introduce into Clause 1 the concept that the Bill is about adventurous or risky activities that imply physical danger, not financial danger or things like that. I suspect that "desirable activity" is too wide a definition and later I shall speak briefly to
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Amendments Nos. 5 and 7 which change the definition to "legitimate sporting, recreational or other socially beneficial" activity. But then I thought about trees, because I am not sure that that definition encompasses trees. Tree climbing is essential. I can remember when my son Richard fell out of a tree at school and broke his arm. The school very nervously rang us up, and we told it not to worry and that we were not going to sue because that is part of normal educational activity. It was as pleased as Punch. One has to learn some time.
Going back to something the noble Lord, Lord Hunt of Wirral, said earlier about trying to protect teachers against not being able to sue, I think that they should be as unable to sue as anyone else. If someone has been stupid, just because he was the teacher, I do not see why he has any greater right to sue than a pupil. If he takes a risk and gets it wrong, he should, if anything, have less right because he should know. The only way one learns how to handle risk properly is by taking risks when young and by getting away with them. That needs to be drawn out somewhere.
The other night, I spoke about climbing a mountain much too late, coming off it and suddenly realising that the compass bearing was wrong. My two friends and I took the decision to go back and spend the night in a shelter on the top of the mountain, rather than risk going further. If we had not done things in dangerous circumstances before, we would not have had the confidence to take that decision and we would probably have walked over the edge, like the chap we found in the shelter when we got there. He had already fallen over the edge and could not get off the hill. We hauled him off the next day and found the rescue team coming up. That was interesting because he did not have the experience and had obviously not climbed under adverse conditions often enough in the past. The only way one learns is by taking risks. Otherwise, one is in danger later on.
I do not think that this list is the correct way to go about this, because of the things that it leaves out. For instance, my noble friend Lord Chorley, who has had to leave early, pointed out new Clause 1(2)(g),
He is not sure that that is wide enough and would like to tackle it at another time. New Clause 1(2)(l) covers,
I know that the Health and Safety Executive has now imposed such restrictions on military training that the Armed Forces are never put in situations of real danger. As a result, the first time they encounter it is on the battlefield. More soldiers will be lost because they have not handled danger in controlled circumstances, where some of them will get hurt. But more will be killed on the battlefield if they do not take those risks early. We have to realise that and accept it.
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Clause 13 is a brave attempt in the right direction. I am not sure that it is right, but I welcome it because it has opened up this debate. The definition of desirable activity will have to be sorted out for Report.
Lord Goodhart: The picture of the cow and the fat lawyer, to which the noble Earl, Lord Erroll, referred, was for many years, and, for all I know, may still be, in the display window at Wildy's legal bookshop in Lincoln's Inn. When I was in practice, my chambers were next door, so I saw that picture every day of my working life.
We have had a lot of discussion about the tree. I think it is slightly misguided, because the tree is not provided for the benefit of children and is not normally a glorified climbing frame for them. It is normally there to provide shade and beauty in a public park, and I can well imagine situations in which it was obvious that the branches of a tree were in such a state that they might tempt young children to climb them and injury themselves. That could well be negligent.
However, if we are saddled with Clause 1, we should try to make it as good as possible. I entirely agree with the noble Lord, Lord Hunt, that the main problem is the use of the phrase "desirable activity". It raises the question of desirable to whom? What are the criteria for deciding what is desirable? What distinguishes what is desirable from what is undesirable? All those add unnecessary complications. It is much better to use the test of public benefit or public interest. That is a clearer definition by far than using "desirable activity", and the courts would not have great difficulty deciding what is in the public interest or for the public benefit; it is the sort of decision that courts constantly have to take. That reflects the views of the Appellate Committee on the Tomlinson case, where an adverse decision from the Lords might well have led to the closure of a public park—at least for a period while works were undertaken to make sure that the quarry in which the lake was situated was totally inaccessible.
3.45 pm
Therefore, I am happy to support Amendment No. 3—it is rather better than my Amendment No. 4—because it adds "facility" to "activity". In many cases, it is the facility rather than the activity that needs to be protected. That was probably the case in Tomlinson—that what was protected was the facility rather than any particular activity in it. In consequence, I should say that I shall therefore not move Amendments Nos. 4 or 6, which had originally been grouped with Amendment No. 3 but were then de-grouped. I do not need to say anything further about them.
Having got that far, I do not think it either practicable or desirable to try to define public interest or public benefit, and it is better to leave it to the courts. Any definition could lead to the exclusion of activities that were in the public interest, or the inclusion of activities that were not. Frankly, I agree with all the criticisms that I have heard of Amendment No. 13. Indeed, I can go rather further than that and
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say that it would be disastrous on two grounds. First, it would plainly indicate to the courts that they were to apply different legal principles to those groups that fell within the category from those that did not. Secondly, it would lead to a great deal of satellite litigation about whether any particular activity fell within one of the categories. I am entirely opposed to Amendment No. 13, but equally entirely happy with Amendment No. 3.
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