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The Earl of Erroll: This amendment looks extremely sensible. If someone willingly accepts a risk, that is it. He or she has accepted the risk. I take into account the fact that parents probably need to assess when accepting a risk on behalf of a child that the teacher is capable. Once you have accepted the risk, you should be allowed to get on with it and take it. This amendment helps to clarify that. As regards paragraph (b), if a person trespasses on land and gets into trouble, holding the owner or occupier of that land liable is totally unreasonable. How on earth can you predict what some idiot will do once they come on to land when they are not meant to? It might be quite a useful defence to have in general.

Baroness Ashton of Upholland: As the noble Lord says, this raises an interesting point. I hope he will not mind if I say that if this had been an amendment to the Occupiers' Liability Act, it would have been more appropriate in that legislation than in this. But I take the point that he is referring to. Certainly, Anne McIntosh's Bill—and I remember the Radio 4 end-of-year debates about what people would like to see—caused the Government to look very carefully at the whole issue.

We concur with the noble Lord in saying that we strongly support the right of householders and others to defend themselves with reasonable force. But he would accept that this is what the current law allows, and the Bill that Anne McIntosh introduced was, we felt, unnecessary and not necessarily helpful—not least because we did not believe that the term "not grossly disproportionate" was any clearer than the term "reasonable force". It was in the spirit of understanding where those proposals came from, but not seeing that they would be an appropriate way forward, that the Bill was talked out at Second Reading, as the noble Lord will know. The "Tony Martin" issues came up under the Criminal Justice Act. I shall not refer in detail to Section 329, but noble Lords will know that we were looking to see how the courts would respond to issues when someone sought to claim compensation.

The amendment would create difficulties in the Bill because of how it is positioned. It would require a Girl Guide camp, for example, to consider all the issues
 
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when someone went on to the land and whether it was a desirable activity, because someone came onto the land with a view to stealing the equipment. In other words, you would be assessing the activity regardless of what the individual who came on to the land was seeking to do. I am not sure that it is relevant to put that provision in this particular part of the Bill. When the courts look at these issues, I do not believe that they do anything other than look at the whole range of circumstances; what I would be nervous about—and what concerns me with this amendment—is that we do not move away from proportionality.

I shall try to think of a frivolous example, but do it deliberately—because I am not trying to suggest in any sense that someone who commits an offence of any kind is doing anything other than something terribly wrong. But let us say that a bunch of kids decide to come onto your land to nick your apples, which when I was growing up and we had an orchard was something that was a familiar pastime for most of my friends; let us say that you have set out a kind of mantrap at the bottom, so that the children suffer terrible injuries. I know that it is a ridiculous example—but when you look at the implications for any particular way in which we approach something, you have to be proportionate in what you do. The kids come in, get the apples and fall off and try to claim—but they were actually there to steal apples—of course, the courts would take that into account if it was appropriate. But you have to keep things in proportion and be proportionate in response, and I am nervous again that, although I see the logic behind the proposal, we will find ourselves walking into that difficult area.

The issues that the noble Lord raised about the Tony Martin case were covered in a large part in the Criminal Justice Act. I think that the noble Lord, when he originally considered this matter, was looking to amend that Act—but I do not believe that the place for that provision is here, although I accept the need to raise the issues.

Lord Hunt of Wirral: This has been a very helpful debate. I am grateful to the Minister for her response and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Hunt of Wirral moved Amendment No. 12:

Page 1, line 11, at end insert—

"( ) In considering whether an activity is a desirable activity for the purposes of this Part, the court shall have regard to the age of the claimant and in particular whether the claimant is—
(a) under 10 years of age, or
(b) under 14 years of age but can prove that he did not have the capacity to understand the nature of his actions."

The noble Lord said: Amendment No. 12 gives us an exciting opportunity to probe even further the Minister's activities a few years ago. She has referred to her friends, with the omission of herself—

Baroness Ashton of Upholland: It was my orchard.

Lord Hunt of Wirral: I refuse to eat the apple that has just been passed to me.
 
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On the back of the last debate, it is important to consider the position of children. This amendment is an attempt to redraft the duty, including that to trespassers, under the Occupiers' Liability Act to reflect a view of the current political situation and of the original intention of that Act. It followed British Railways Board v Herrington, which involved a child trespassing on a railway line. The British Railways Board owned an electrified line that was fenced off from a meadow where children were lawfully playing. The fence had been in a dilapidated condition for some time and the defendant's stationmaster had not done his duty properly. The child, then aged six, trespassed over the broken fence from the meadow where he had been playing and was injured by the live rail. The Appellate Committee found that the British Railways Board was in breach of its duty and the child was entitled to damages. The principle of that case is that if a child is a visitor, an occupier must be prepared for children to be less careful than adults. Apart from any statutory provisions, it is a matter of ordinary common knowledge that children will roam and explore. If a fence marks a boundary, an adult who climbs over it will appreciate that they are doing something significant. A small boy who finds a part of a fence so dilapidated that there is no obstacle to his progress may or may not know that he is a trespasser, and the point follows.

The intention of this amendment is to restrict the application of the 1984 Act to children and to go one step further by importing into it—that was the original intention—an equivalent to the criminal standard of assessment of the capacity of children. We need to differentiate between children who know the consequences of their actions and those under 10 or who lack mental capacity. The law has to be especially scrupulous in protecting children, whether they are trespassing or not, but I contend that that care may properly diminish, as it does in the criminal courts, as the child becomes older and wiser. It is probably fair to say that there is a world of difference, even in the 21 years since the Occupiers' Liability Act 1984 was brought into force, in the understanding of older children about the risks that they are taking.

I hope that the Minister will be able to respond to this point, even though it was originally put forward as a way of amending the Act. It gives us an opportunity to reflect on whether that Act has stood the test of time and whether we should now insert this amendment in the Bill, so that the court has regard to the age of the claimant and can differentiate between when the claimant is under 10—the noble Baroness will remember that in the Herrington case the child was six—and when the child is under 14 but can prove that he did not have the capacity to understand the nature of his actions. The amendment imposes that sort of test, which more adequately reflects the demands and the status of today's facts of life, rather than going back 21 years, because the world has changed considerably. I beg to move.
 
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5 pm

The Earl of Erroll: I have not thought about any of the implications for the Occupiers' Liability Act and things like that at all. I am looking at the matter purely from the point of view of adventure and risky sports and training. This amendment worries me quite considerably. Different children mature at different rates. If they are brought up in the countryside or near a cliff face they will have completely different capabilities and awareness of danger. I do not think that it goes with age at all. I would be very worried if this read across into adventure training, as you might classify it, from what clearly it is intended to cover, which is a completely different circumstance. Though there may be merit somewhere, I do not think that there is merit when it applies to adventure training and educational trips.

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