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Lord Hunt of Wirral: I want to respond to a couple of points that have been made before the Minister replies. First, I assure all the tree lovers that trees are covered in Amendment No. 13 by its subsection (2)(i) on,

"the advancement of environmental . . . improvement".

The planting of trees is clearly a step in that direction.

Lord Skelmersdale: My noble friend really should explain how on earth falling out of a tree can come under the heading of environmental improvement?

Lord Hunt of Wirral: It covers the planting of the tree in the first place and the type of tree.

Lord Goodhart: Does this apply to Cupressus leylandii?

Lord Hunt of Wirral: Many would contend that such planting is not environmental improvement, but I think that those who plant those trees think that they improve the environment. All that I will say about trees is that we have reached a remarkable situation in London, where the plane trees are very much a feature. As I understand it, every time a plane tree is removed, it is now replaced not by a plane tree, but by a cherry tree. I have been told that on very good authority. A decision has been made to change the face of London in that way because cherry trees are safer than plane trees, in view of the dangers that many Members of the Committee have referred to.

Without going too far in that direction, I want to defend the wish to define.

As the Committee will be aware, we are not debating Amendment No. 13. It was put forward as an alternative because in a private meeting the Minister challenged me to go away and come up with an alternative to Clause 1. I have had the finest brains in the law spending midnight hours coming forward, first, with Amendment No. 3. I am pleased that so many Members of the Committee have approved of that amendment. I foresaw that the Minister would rightly say, "Yes, you are redefining 'desirable activities' as a facility for the purpose of public benefit. What does that mean?". Therefore, I thought I had hit on a brilliant move in taking the Government's definition of "public benefit" out of the Charities Bill and repeating it in this Bill, and then having that subject to amendment and improvement. At least the Minister would not be able to say to me, "You have fallen into the same trap of which you are accusing me in producing a phrase that has not been tried and tested". In fact, "public benefit" has been tested many
 
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times, but I thought that it might be helpful to the Committee if I set out in detail what I think could well be a definition of that phrase.

The key is Amendment No. 3 and I am pressing the Minister to justify the use of the phrase "desirable activity", to give us an idea of where it has come from—whether it is a sudden impulsive legal idea; whether it is the only phrase in the English language that has not been tested by the courts and therefore it is de novo, without any track record, without any baggage; or whether there is a more genuine reason for trying to find a way to define activities that are in the public benefit without saying that they are for the public benefit. My Amendment No. 3 gives a clear alternative to that.

Baroness Ashton of Upholland: I am grateful to the noble Lord in his second bite of the cherry—not the tree. Noble Lords will be thrilled to hear that I am not going to get into trees. I say through the pages of Hansard that I do not need any letters from tree lovers because I fully support all our environmental concerns, especially trees. I loved the idea of an impulsive legal move because I do not think of such moves as that. It certainly has not been my experience, but then I am not a lawyer and know little about it.

I want to talk about Amendment No. 13. Although the noble Lord keeps saying that we are not debating it, he has grouped it with Amendment No. 3 so I shall talk about it. I am getting confused about what we shall be moving on to, so please let me do that, otherwise I shall completely lose the plot, which may or may not be a disaster.

I want to begin by explaining where we got "desirable activity" from. The noble Lord is right. His legal experts, who I have had the pleasure of meeting and who are extremely expert, will rightly have spent days and nights trawling through to see whether "desirable activity" has previously been used. To my knowledge, it has not. That was a deliberate move. I want to explain the background to that in the context that no one is wedded to a particular phrase. It was the phrase that we thought best dealt with the situation before us.

In the approach the courts have taken, we wanted to take into account the end to be achieved or the nature of the activities giving rise to the risk. In particular, the wider social value of activities, which concerned the noble Earl, Lord Erroll, and when you assess what precautions or other steps against the risk would be reasonable. The noble Earl spoke about how young people when growing up need to learn about risk. I agree with him, although as a mum I am always extremely nervous when my children are doing risky activities. I am nervous and I do not want them to fall and hurt themselves. Therefore, I want the provision to be within the context of providing as much safety as possible. You are always trying to balance the desire for young people to develop skills and make judgments in both physical and mental ways and the recognition that there is not the certainty that we led them to
 
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believe there was when they are small. They need to learn that as they develop and grow older and we must ensure that we have got the balance right.

That is a very clear part of what we are trying to do. What phrase might encompass that? We looked at the different kinds of cases that have arisen. These cases are far more familiar to the lawyers in the Committee and to the advisers than they are to me. However, I shall say what I can about four cases. In view of my experience the one I remember best is Leonard v Girl Guide Association, which concerns a girl who burnt her leg while cooking sausages at a girl guide camp. That case has a variety of interpretations. Some people claim that the incident happened on a different night and in a different place. In finding that the claimant had received the relevant instruction and considering her age and previous experience, the judge concluded that there had been no negligence. He also said that girl guide camps should be an enjoyable experience for all, should offer good supervision and should aim to teach and inform the young and encourage a level of responsibility in them. We want to encompass that sentiment.

We also want to encompass the case where a mum takes a child away from the school sports day to have a picnic, instructs the child to walk back into the school grounds but the child goes off to the swings, falls off and hurts himself or herself. The courts have said that playing fields cannot be made hazard free and that it would be unreasonable to impose a duty on schools to fence off the swings, warn parents of the hazards of unsupervised playing and so on. In other words, it would be—

Lord Hunt of Wirral: I am not sure that the Minister has yet given us the name, title or reference of that particular case. I caught the name, Leonard v Girl Guide Association, but if the Minister could give the names of the cases which she mentions I can go away and read them.

Baroness Ashton of Upholland: I intended to do so. I was merely breaking up the way I dealt with the cases so that I started by giving the detail rather than their names. The relevant name is Simonds v Isle of Wight County Council. I thought the noble Lord's legal team would have leapt to give him the name instantly; I am sure they know it. I would not dream of not giving the noble Lord that name.

Essentially, the court said that it would be impossible for the school to hold a sports day if you had to do all those things, and therefore that was unreasonable.

I refer to Watt v Hertfordshire County Council, which concerns fire-fighters who were injured by lifting gear when travelling in a vehicle not specifically fitted for carrying that gear. They were going to an emergency where a woman was trapped under a heavy vehicle. The court held that the firemen were ready to take the risk of using the vehicle to save life. Lord Denning said it was well settled that in measuring due care you must balance the risk against the measures
 
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necessary to eliminate that risk, and that you must balance the risk against the end to be achieved. We want to encompass that case also.

I refer to Latimer v A.E.C. Ltd. This is a business example. In that case the factory floor was flooded. To remove all risk of slipping would have required the factory owner to close down production for the entire day. It was considered that that impact on the firm's activity was not reasonable.

Those are four different examples and there will be plenty more, but I wanted to set out the range of examples that we are looking at so that the Committee can consider them before Report. The difficulty with public interest is that, as I understand it, I am not sure that it would capture all of those, particularly the business example. I did not want to exclude that important example.

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