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Baroness Ashton of Upholland: I am grateful to the noble Lord. I said earlier that I sit at his feet in terms of his knowledge and ability, not only as a lawyer but also as a politician. So why would I be at all surprised
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that the noble Lord would know precisely what I would suggest by way of an invitation to amend or support the thrust of what I seek to do, while attempting at the same time to make it work more effectively? First, on conkers and trees, I want to say something on the broader work that we are doing. Quite a lot of examples that I have been given by not only noble Lords but also other organisations concern interpretations of health and safety legislation or the interpretation that they believe that the Health and Safety Executive or others are putting on that legislation. I can think of examples where I have heard of things that I thought were just plain daft, but they have been misinterpretations or a Chinese-whispers effect.
We want to make sure that the Health and Safety Executive—we are working very fully with Bill Callaghan and his team—is able to get the message out about what is realistic and what is being said about health and safety issues, so that you do not get a position—this applies particularly to children and young people—where, for various reasons, those in charge say, "You can't do this because of some health and safety legislation", which does not exist. I wanted to say that because there may not be an opportunity to say it elsewhere. The noble Lord gave me the opportunity with his reference to examples such as whether we should cut down trees because children might climb on them.
I am not averse to having a think about whether there is something that we can add to Clause 1 that would do what the noble Lord, Lord Hunt, in particular, but other Members of the Committee as well, are concerned to achieve. In offering to reflect further, I should like to make two points. First, I am not convinced that the amendment would cover fully private interest. I used the case of Latimer v A.E.C. Ltd—the flooded floor case—earlier. I am not sure whether by using public interest we would capture all of that as effectively as we might.
Lord Hunt of Wirral: But the noble Baroness will understand that this is a disjunctive addition. Therefore, it does not add in any way. It just gives another alternative. Therefore, it does not matter whether it encompasses activities which are clearly desirable, because they are already covered by paragraphs (a) and (b). This merely adds another paragraph to widen the clause to cover areas that might not be caught rather than prevent activities which are already caught and are then, for some reason, disallowed. That is why it is pleaded in the disjunctive rather than the conjunctive form.
Baroness Ashton of Upholland: That is phraseology that I have learnt. I do not dispute what the noble Lord seeks to do. That is an issue that I will have to look at. If the noble Lord is right that it does not have that effect, it becomes an even more appealing opportunity. At this stage, I am not certain. My advice is that we are not certain that that would be quite the effect. The noble Lord has said that what I described is not
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what he seeks to do. What he seeks to do, I can completely support. That is what I am trying to clarify. It is an issue that I need to look at very carefully. The advice I am receiving is that that may not be quite right.
I also wondered—I take on board what the noble Lord said—why the noble Lord referred to the defendant rather than the court. I was not quite sure why, in his example, he referred to what the defendant might reasonably regard as opposed to what the court might reasonably regard. Will the noble Lord explain that a little more? I was not sure why he spoke about the defendant and not the court in that context.
Lord Hunt of Wirral: It would be very much up to one party—in this case the defendant—to persuade the court that there would be consequences that might reasonably be put forward as consequences which would be contrary to the public interest. In effect, it would be the court that would decide whether the defendant had put forward a reasonable case. But we could phrase it in a different way. It is merely that this is the way in which the legal brains who thought up this amendment have put it. I did not argue with them at the time, but I will now.
Baroness Ashton of Upholland: I am very grateful for that. I am slightly nervous about it because I have been at pains to stress that in Clause 1 we do not seek to change the law. We seek to clarify whatever words Members of the Committee prefer. I am not entirely certain that "defendant" reflects the current situation. It may be a slight amendment to the current situation, which I would be keen to avoid for the reasons that I have given earlier. I would be grateful if the noble Lord would press the legal brains with whom he has discussed this. Perhaps we can agree to discuss this further before the next stage of the Bill.
Lord Hunt of Wirral: I hope that Members of the Committee will now understand that this amendment seeks to produce an acceptable Clause 1. I am concerned by what I hear outside this place. There is a rising tide of opinion that it is better to do without Clause 1, which was very much reflected in what the noble Lord, Lord Goodhart, said. The message that I hear increasingly from all sides is that the Government's foray into this very sensitive area is better repelled and repulsed than improved. I hope that the noble Baroness will understand that the motivation behind many of these amendments is to improve rather than defeat Clause 1.
4.45 pm
We sympathise very much with the objectives that the Government have. It is probably in this wonderful atmosphere of friendship that I referred to the noble Earl, Lord Erroll, as a friend. Perhaps I may be allowed to say that people reading Hansard will not
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quite understand the significance of the point, but I do. I apologise if I caused any offence to the independence, impartiality and integrity of the noble Cross-Bencher.
The Earl of Erroll: No offence was taken whatever. I count it as a great honour.
Baroness Ashton of Upholland: Oh, please!
Lord Hunt of Wirral: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Lucas had given notice of his intention to move Amendment No. 10:
"( ) In determining a claim in negligence the court shall have regard to—
(a) the extent that the person undertaking the activity obeyed the instructions given by the person providing the activities, or
(b) the influence of drugs or alcohol."
The Earl of Erroll: I see my noble friend Lord Greenway's name. Although the amendment is not being moved, could I have a copy of the letter too? It looked a very sensible amendment. I would love to have a copy of whatever you sent to my noble friend that caused him to not move it.
Baroness Ashton of Upholland: Of course, although I am not entirely convinced that my letter persuaded him not to move it. It was also part of the debate. I shall make sure that the noble Lord receives a copy.
Lord Hunt of Wirral moved Amendment No. 11:
"( ) In considering whether an activity is a desirable activity for the purposes of this Part, the court shall have particular regard to whether the claimant—
(a) willingly accepted a risk as his (the question whether a risk was so accepted to be decided on the same principles as in other cases in which one person owes a duty of care to another), or
(b) entered onto land or into premises with the intention of committing an offence."
The noble Lord said: It may assist the noble Earl if I indicate that I intend to move Amendment No. 18, which covers many of the points in Amendment No. 10, so there will be an opportunity for us to explore this further. Amendment No. 11 seeks to insert at the end of Clause 1—again, in the definition of "desirable activity"—the words set out on the Marshalled List. These words attempt to restrict the duty owed, for example, to trespassers by the Occupiers' Liability Act 1984 by removing any right for those engaged in criminal activity. I suppose that some people would call this the Tony Martin defence. It is interesting that in another place, the Criminal Law (Amendment) (Protection of Property) Bill was presented by Anne McIntosh earlier this year. A range of parties are signatories to the Bill, including Kate Hoey, Frank Field, Dominic Grieve, David Davis and
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Richard Taylor. It seeks to amend criminal law in relation to the use of force in the prevention of crime or in the defence of persons or property.
It is also interesting to note that that Bill deals with an issue which featured in the Radio 4 "Today" programme survey on what was the legislative change that most listeners wanted. It was this change which is set out in the Bill presented by my colleague, Anne McIntosh. In the speech to which I referred earlier, the Prime Minister talked about people taking responsibility for their actions. There is nothing in this Bill which achieves that. This is just one of a series of points that we are raising on how the concept of responsibilities plays into the law of negligence in an undesirable way. Certainly, that is what the majority of the public believe. I hope that that is a sufficient explanation for the noble Baroness. I beg to move.
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