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Lord Hunt of Wirral: Faced with that challenge, I can do no better than beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Erroll moved Amendment No. 5:
Page 1, line 8, leave out "desirable" and insert "legitimate sporting, recreational or other socially beneficial"
The noble Earl said: I move this amendment on behalf of my noble friend Lord Greenway. It may seem strange that, after the long debate we have just had, this amendment appears to be similar to the others. I should have put my name to this amendment, as I said earlier. It puts the focus in a different place. We have been talking about public interest and public benefit. The amendment is interesting. I do not want to open up a huge debate on this, but it may be helpful to separate mentally the two things. The amendment does not refer to the public interest but to,
Private people can be sued as well. That is also a huge problem. People sometimes forget that it is not just public authorities and schools being sued. For example, my wife has a small estate with footpaths running through it. Someone wishes to organise a fun run through the estate and that impinges on her liability as well as his liability. She has had a very difficult exchange of letters with the organiser, who finds it difficult to take on board that she is liable as well as him. My wife's insurers insist on seeing his insurance liability before they will absolve my wife from responsibility for permitting the run to take place if she is able to refuse it. As there have to be stationary marshals positioned at points along the fun-run course, she has some control over it, as people are not allowed to stop and sit down on a public footpath for any length of time.
There are also huge implications for the private sector, for ordinary, private individuals. I want to separate out Amendment No. 7 so that I can focus the mind of the Committee on the fact that just using the public interest is not sufficient. One will find that other people are not covered by it and one will get what appears to be a public interest, like a fun run, raising
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money for charity, blocked because private people are at risk still. That is why I want to leave that amendment separate for discussion, so that we can focus our minds briefly on that. I do not want to labour the point. Most of it has been covered. I do not think it needs any lengthy reply or discussion. Between now and Report, when we apply our minds to potentially better wording than "desirable", the wording must encompass not only public benefit and public interest, but it must also encompass private interests where they would affect the pubic interest, so that those people are covered as well. I beg to move.
Baroness Ashton of Upholland: I am grateful to the noble Earl for moving the amendment. It goes quite a long way to capturing what we are trying to do in the breadth of case law. Perhaps I should have said at the beginning that I start with the principle of what I can accept. It makes my life easier and it makes Members of the Committee like me more. I am not sure that it captures all the different cases—referring back to Tomlinson. The Judicial Committee looked at a range of different cases and drew down different aspects to form that judgment, which was very important. Previously, we spoke about the range of different circumstances where it would be legitimate for the courts to be saying that these are important matters to be taken into account. I am not sure that we have captured it all. It is part of our discussion about "desirable activity", on which the Committee is not keen at this juncture, but may come to love as we try to explore how to deal with the issues. I am not sure whether it would narrow it too much. That is my difficulty with it. I have nothing other than support for what the noble Earl is trying to do, but I think it might not encapsulate everything within it. We shall have a think about that.
The Earl of Erroll: I entirely agree with what the noble Baroness has just said. I do not think the words are ideal, particularly as a result of the previous debate. It highlights a particular point that could have got lost in the previous debate. That was why I wanted to speak to it separately.
For clarification, I should say that the noble Lord, Lord Hunt of Wirral, has very kindly referred to me as his noble friend. I like to think as Cross Benchers we are friendly with everyone in the House, on all sides. Please do not take that to assume that just because I am sitting facing the Minister, I have joined the Conservative Benches in any permanent way. I am still firmly a Cross Bencher. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 6 and 7 not moved.]
Lord Lucas had given notice of his intention to move Amendment No. 8:
( ) (where the defendant is acting in loco parentis), go beyond the steps which a reasonable parent would be expected to take."
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The noble Lord said: The Minister was kind enough to write me a letter following Second Reading. As a result of that and of our discussions today, I shall not move Amendment Nos. 8, 9 or 24 and I am thinking about not moving Amendment No. 14. It seems to me that all the points I wanted to make are either better made in other amendments or can well be raised under them.
4.30 pm
Lord Hunt of Wirral moved Amendment No. 9:
( ) produce consequences that the defendant might reasonably regard as being contrary to the public interest."
The noble Lord said: Amendment No. 9 is tabled in response to the challenge that I had not known the Minister was going to give me. I had been prepared for such an invitation. The invitation was, "Can you come up with anything better?". I sought to draw together a number of the finest legal brains in the country outside government. I asked them to come up with a phrase which they felt would sweep up, in the way expressed by several Members of the Committee, the activities that would not be caught by the definition "desirable activity". I suppose that I am almost leaving out the word "desirable". With this amendment, I want to insert at the end of Clause 1—page 1, line 11—paragraph (c). I want to do it in a disjunctive way, so that it would read:
"(a) prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way, or
(c) produce consequences that the defendant might reasonably regard as being contrary to the public interest".
One of these great brains said that they were particularly exercised by the conker-tree analogy—should a local authority cut down a tree because conkers fall from it and might injure children?—and a number of other ancillary activities which might not win the argument that they are desirable. There are, for instance, a number of recreational activities, such as jet-skiing and all sorts of sporting activities, which a range of opinion would say are not desirable, yet they are an integral part of what I have referred to as vitamin risk. That is the excitement engendered particularly in the younger generation, but also in the older generation—perhaps I may term them as the "young old"—who undertake activities which some people might say are on the cusp of being desirable or undesirable, but which would be held as being in the public interest.
I have tried to accept the Minister's existing Clause 1 and add something to it which might make it easier for the courts to interpret. More importantly, it would make it much easier for the consumer and the citizen to understand what Parliament is doing if it is setting out not only the test of desirable but also the test of the public interest. If it can prove that what it
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is doing is in the public interest and that it is a lower standard of proof than "desirable", we are making progress. They would then more readily understand what it is that has been enacted.
I suppose that I am talking about what I referred to before as going over the top in preventing activities which some might think are undesirable, such as jumping into a lake in a park when clearly there is a risk which might cause problems to the individual and activities where there is a risk that could also cause risk to other people, but it is in the public interest that the activities should continue. So we get away from this need to prove "desirable", which is probably at the heart of a lot of the worries outside Parliament.
Just before this Committee stage, I received a very compelling submission from someone involved in the trade union movement who was very concerned about the need to prove, and the consequences of someone proving, "desirable activity". I can see why. We will move on to debates to consider the extent of Clause 1 and to what extent it applies to employers' liability cases. I repeat that it is very rare just to plead a case in negligence. It is normally also in breach of statutory duty under the various Acts of Parliament that protect workers in industry. It might be that if an employee wished to bring such a claim he or she might be confronted by another barrier; that is, whether the activity in which they were involved was desirable. No doubt the Minister may indicate that Clause 1 does not amend the law at all, but that it is certainly not intended to apply to employers' liability claims. But I cannot see anything in the wording that would restrict it. It may be that there will be government amendments later.
If a worker in an activity which most of the public might argue was not desirable had a valid claim under existing law, he might find himself confronted by this barrier, whereas employees in industries which were clearly desirable activities would not have such a barrier to surmount, and vice versa. It may be helpful if the Minister could deal with that problem as well as giving her response to what seems to be a very sensible addition to Clause 1—this test of public interest. I must not anticipate what the noble Baroness is about to tell the Committee, but she may say, "Well, this is already covered. It is superfluous and does not add anything". If that is the argument, I cannot quite understand it because it certainly adds words. Desirable activities are not necessarily in the public interest. There must be a dividing line somewhere.
I must have anticipated the openness with which the Minister would approach this situation. I have enabled the Committee at an early stage to respond to the invitation that the Minister gave earlier to "please come up with something else". All that we have done is to accept her definition and to add something to it which we believe improves it. We await her response. I beg to move.
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