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Lord Lucas: Before my noble friend withdraws the amendment, and on the basis of what has been said, I wonder whether we actually need the words "benefit" or "desirable". Why, in this legislation, should we imply that what we are saying applies only to something that is in some way approved of morally? Surely, the court could decide at the time whether the moral approbation applies to the activity or whether it is illegal, undesirable or in some other way not to be supported. Why do we need those words in the legislation? If an activity is provided for the public, why does it need to be provided for the public benefit? Could that not be dealt with in the general course of a case? Surely, that would remove much of the difficulty. If one removes "desirable" from "activity", one achieves much the same effect.

Lord Hunt of Wirral: Before the Minister responds, perhaps I can recap. The noble Lord has made a very important point. In effect, that would reword Clause 1, so that the requirement would be to take those steps that may "(a) prevent an activity from being undertaken at all, to a particular extent or in a particular way, or (b) discourage persons from undertaking functions in connection with an activity". So there is no value judgment whether that activity is in the public interest, or of public benefit or is desirable. That is an important point for the Minister to answer. It may well give us an opportunity to probe still further why "desirable activity" has been put in. Presumably, at some stage, the noble Baroness must have considered saying simply "activity". Why, therefore, has the adjective "desirable" been placed with "activity"?

Baroness Ashton of Upholland: I can assure the Committee that the noble Baroness has considered all sorts of things in the course of this Bill and I am considering more by the minute. Whether we include that word or not, the courts can consider desirability, as they would consider a whole range of circumstances and factors. My thinking had been that "desirable" clarified the activities that we were thinking about. I have made it clear, all the way through our discussions, that I am not saying—the noble Lord, Lord Hunt, made fun of me using the word "wedded" so I shall think of another one—that this is the only phrase that may exist, but, with the benefit of our legal advice, we thought it was the best phrase that captured all the different circumstances.

The noble Lord, Lord Lucas, in his inimitable fashion, leaps up at the end and comes up with an important point. If we take out "desirable", do we lose
 
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much, especially as noble Lords feel that the phrase "desirable activity" does not work for them? It would be enormously helpful to me if noble Lords would consider whether taking out "desirable" addresses some of the concerns raised, which I completely understand. While not doing what I am fearful of—using a legal, technical word—that might fail to capture particular activities that we would not wish to see excluded from the range of things that the courts cover. If Members of the Committee do that and let me know, I am perfectly willing to consider whether I effectively have a superfluous word because the courts can act anyway. I was trying to use a word that I hope in a sense captures what the noble Earl is particularly concerned about. The noble Lord, Lord Hunt, asked where we began. The groups that we were most concerned about were absolutely those to which the noble Earl referred. I am very open to doing that if it would be of any assistance to the Committee.

4.15 pm

Lord Goodhart: Removing the concept of desirability would be absolutely disastrous. The whole point behind the Tomlinson case is that access to the park was beneficial to the public. Risks therefore had to be accepted that in other circumstances might not have been. To remove "desirable" and leave "activity" would mean that the court would have to look at the circumstances involved in people going to a pub to drink themselves out of their senses, for instance. By any standards, that is hardly a desirable activity. The concept of desirability is central here. It may apply in commercial circumstances; you may be able to say that it is desirable that parents be able to take their children to enjoy themselves at leisure parks and so on, and that risks there may have to be accepted. However, the word cannot simply be removed altogether.

Baroness Ashton of Upholland: This is called a no-win situation in any place other than your Lordships' House. The courts make value judgments about activities all the time. I am now heavily into the idea of giving cases, so I shall say that the case is obviously Overseas Tankship (UK) Ltd v Miller Steamship Company. I was looking at that case this afternoon. It is about oil that discharged into Sydney harbour, and the noble Lord, Lord Goodhart, will of course be familiar with it.

Lord Goodhart: It is a very well known case.

Baroness Ashton of Upholland: Not to a non-lawyer, you have to understand. The House of Lords made the point that there was no justification for the activity—in other words, it looks at value judgments all the time. That is, in a sense, what I was trying to capture with the provision. In not having "desirable", the question would be whether—I was going to say, "we would open the floodgates", but that may be an inappropriate phrase. The noble Lord's point was particularly valid, because the courts are now considering the matter anyway. They are dismissing cases where they do not believe that it is right.
 
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There is a question for me too; it is something that I muse on, and it has no legal basis whatever. When people think about public benefits, I am always mindful of who the public are in that context. Some people do not regard as having any value whatever activities that Members of the Committee would regard as desirable or to be welcomed. The noble Lord, Lord Hunt, referred to sport in his family. I think of instances in which people are negative about activities that he would consider of public benefit, in that they do not like young people tramping around the moor side, or children in a nursery making noise next door, or whatever. In the phraseology that we chose, I was trying to look for something that got into an understanding of the wide variety of different activities, but in a sense tried to capture what the courts already do. Removing "desirable" does not do what the noble Lord fears, because the courts already cope with that. It might have the benefit of getting me some support from Members of the Committee worried about other aspects of the phrase.

Lord Hunt of Wirral: This has been a useful development triggered by my noble friend Lord Lucas. If I recall the case to which the noble Baroness referred, I would have known it as "The Wagon Mound". I am talking a little from memory, but I recall that in that case Lord Reid drew a contrast with Bolton v Stone. The Appellate Committee held that it was not negligent for a cricket club to do nothing about the risk of someone being injured by a cricket ball being hit out of the ground. The difference was that the cricket club was carrying out a lawful and socially useful activity in organising a cricket match and it would have had to stop playing cricket at the ground. That was the difference. My noble friend has caused us to retirer pour mieux sauter for a moment. I translate for the benefit of the noble Baroness: to take a step back to consider how better to proceed.

Baroness Ashton of Upholland: Not only for the benefit of the noble Baroness, I think.

Lord Hunt of Wirral: That was drummed into me during the time that I spent at French universities. We need to think about whether there is a better phrase. We have to reflect, as the noble Lord, Lord Goodhart, has reminded us, on whether we need Clause 1 at all, particularly if it does not amend the law—or it may be held to amend the law in a way that, at the moment, we do not foresee. It also gives us the opportunity to reflect on whether we have yet found a phrase that encompasses the many activities that people would like to see freed from the fear of litigation and claims. That is what we are talking about.

Baroness Ashton of Upholland: I agree with the noble Lord about Bolton v Stone. A woman who lived near the cricket ground was hit when she was in her front garden because the batsman hit a six out of the ground. To stop that happening would have required huge expense which would, effectively have put an end to the cricket club playing cricket. The court held that in those circumstances there was no liability. The noble Lord is right; trying to deal with this perception is
 
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something about which people feel very passionately. Therefore, we do not want to curtail or to fetter the courts, but simply to say something very clearly about the current position. We want to make sure that we can say to ordinary people—the ones we are most concerned about, who do not read legislation and who do not necessarily understand the law—that we have done this. It is very important.

The views of the noble Earl, Lord Erroll, and the noble Lord, Lord Lucas, are very strong and we are trying to strike a balance. As I have indicated, I am comfortable about looking at the wording, but let us not narrow it or change it so that it would not have the great effect that we want. I am happy to do that, if noble Lords can come up with a better wording.

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