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Lord Hunt of Wirral: If the Minister will reflect for a moment, she will see that the amendment refers to public benefit and not to public interest. That was a value judgment taken precisely because of the way in which she is starting to argue. She could, though, deal with the issue of whether public benefit might be the right way forward.

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Baroness Ashton of Upholland: I apologise. I am not sure whether "public benefit" would capture that; it might, but I am not sure. We put Amendments Nos. 3 and 13 together and the noble Lord quite rightly said that he has taken that specifically from legislation because it has a currency within the courts. We believe that choosing the term "desirable activity" because it is new, enables the courts to consider a range of different activities in a new way. It is a phrase that clearly has a meaning, but it does not try to narrow things down. Because the phrase "public benefit" is defined in a particular way in charity law, we were concerned that it would be interpreted in that way.

I have already said that I have a difficulty with lists because of what one leaves out and what one puts in, thereby restraining the ability to examine an activity which is not covered in the list. I am not keen, in any legislation, on putting a list on the face of the Bill. I think that could prevent the law from developing or indeed, by accident, one might miss out something that might be appropriate. That is where the phrase came from. We think that "desirable activity" recognises a range of different circumstances that might take place. It is a comprehensible phrase that the courts will be able to examine and interpret. We are not tying the courts to a technical legal term which, in a sense, "public benefit" does. That is why we think it is a better phrase as it does not constrain the courts.

Lord Goodhart: It seems to me that we are now moving so far from the original motivation for introducing Clause 1, which was the problem with school trips and similar activities undertaken by Guides and Scouts, and so on, that this is becoming another argument for not having Clause 1 at all and
 
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for leaving the courts to recognise, as they do, that there are extremely varied circumstances in which it is reasonable not to prevent a risk. Such activities are not necessarily confined to leisure activities or children's activities or anything of that kind and indeed are so wide that they cannot be defined.

Baroness Ashton of Upholland: I know the noble Lord, Lord Goodhart, would rather not have Clause 1 because he has made that clear. I shall go over the ground again in a slightly different way. Earlier I mentioned what the Better Regulation Task Force said—and when people believe that there is something wrong with the law, there is a perception that has an impact on behaviour. We have focused particularly on the behaviour of organisations that deal with adventure and risk because we all feel very strongly that those are hugely important in our society and particularly, although not exclusively, to our young people. Those are not the only circumstances. If one looks at the compensation culture, the Committee will know that there are many organisations right across a variety of sectors that feel very strongly that they want us to deal with this in a variety of different ways. There is no exclusive view on that.

The noble Lord is absolutely right that, in trying to deal with that erroneous perception, I am not seeking to fetter the way in which the courts operate. Instead, we are trying to ensure that we deal with that perception in Clause 1, and send a clear signal—"declaratory" is a word that I used at the very beginning of the debate—that we do not fetter the courts in looking at the activities so that the way in which the law operates and develops can continue. We do not want to ensure that the common law cannot develop in the normal way. Understandably, lawyers have said that to us from the very beginning. That is the balance I am seeking to strike. Therefore, we believe that choosing a phrase that encapsulates, in our view, the variety of different circumstances of which I have given examples that the Committee can consider, will enable us to put the statement in Clause 1 without fettering the discretion of the courts. That is what I am seeking to do.

The noble Lord may say that we can take the clause out at the next stage in the passage of the Bill through your Lordships' House, but Members in another place will put a different clause in. It is important that we recognise that one of the jobs of government is to talk with all parties to try to come up with something that recognises the absolutely justifiable positions of the different parties involved. Whether noble Lords like it or not, that is what we have sought to do and that is where this phraseology comes from.

I do not accept Amendment No. 13 for the reason mentioned by other Members of the Committee: I do not believe that a list works. It also reinforces the point that it is a technical legal term with a particular history, which would not be helpful. We have come up with "desirable activity"; if noble Lords can come up with a phrase that they like better that does the job, I am open to suggestions, but I do not believe that the one proposed here does so, for the reasons that I have
 
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given. I hope that noble Lords will consider the examples that I have given and that we can continue to discuss the matter both inside and outside your Lordships' House.

Lord Hunt of Wirral: That was a tour de force by the Minister, who cited case after case. I was left with the clear impression—and my mind went back to our discussion of trees—that she has very cleverly produced a money tree for the legal profession. It will be very difficult to make any progress with a phrase that has never been defined, unless lawyers test "desirable" and "activities" and test "desirable activities", and I am not sure that that should be the purpose of what we enact. The poor person left in the middle—the consumer or the person partaking in an activity—is left in the position of not really knowing whether that particular activity will fall under the heading of "desirable activities".

The Minister did not really deal with the suggestion of "public benefit" and why it is a worse phrase than "desirable activities". We shall obviously return to the matter at a later stage. Although I recognise that she put some persuasive arguments about why a list does not work, she has not given any persuasive arguments about why Amendment No. 3—namely, the insertion of "public benefit"—does not work. To return to the question of the list just for one moment, trees have grown fast and furious to uproot the definition that I gave; but I have a sweep-up definition which I extend to commercial activities in the last part of my attempted definition of public benefit. That is something to which I shall want to return later.

The most important thing that has come out of the debate is the Minister's statement that she is not wedded to a particular phrase—which means that we do not have to consider divorce! We can merely try to persuade her to separate from the phrase. I am pleased about that, because it means that we can go away and see whether, in the light of the Minister's comments, we can come up with something better. But I still have doubts about whether at the moment we have moved sufficiently far in the direction that some noble Lords would like—namely, to ensure that activities that have what I have heard described as "vitamin risk" in them are "desirable". It is not immediately apparent that "desirable activities" will cover the activities that inject that element of risk, which is so much part and parcel of proper education and training, particularly for young people. I should like to find some way to meet those points.

My noble friend Lord Erroll said that the Army must take risks in training, which is clearly part and parcel of what I put into subsection (2)(l) of Amendment No. 13, which refers to the,

"promotion of the efficiency of the armed forces of the Crown".

That is such an important point, and I hope that noble Lords will reflect on my noble friend's statements, because we need to see where this legislation is taking us. Is it taking us in the right direction, a direction in which we feel we should move?
 
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My noble friend Lord Skelmersdale made the valid point that we need legislation that is readily understandable to people who look to Parliament to deal with what appears to be a mischief and to be wrong; namely, that activities can be constrained by fear that risks will take the individual or the organisation into areas beyond their means as regards litigation. This has been a very valuable debate. Taking Amendment No. 13 with Amendment No. 3 has been valuable.

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