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The Earl of Erroll: It was a school trip.

Lord Goodhart: There may have been other reasons for not travelling to the Middle East.

The Earl of Erroll: I do not think that Dubai is dangerous. Not all the Middle East is dangerous. That is almost like America classifying countries as America and the rest of the world. To suggest that the entire Middle East is dangerous is a little inaccurate.

Lord Goodhart: Perhaps small parts of the Middle East are not dangerous, but far too much of it is. I was very pleased to hear the Minister say that the insurance problems are being looked at. I hope that something useful will come out of that. I was also pleased to hear not that she will refer the matter to the Law Commission—perhaps I was overstating the position—but that she will discuss it with that body and inform us of the result of those discussions. The Law Commission will have an opportunity to express its views on whether this clause does what the Government want it to do—no less and no more than that.

5.45 pm

I earlier compared Clause 1 to a placebo, which is probably a fair description. A placebo has a tendency to make people feel better even if the effect is psychological rather than physical. I am worried not so much that it does nothing, if it is a placebo and will do good in that capacity so be it; it is doing some good. I am worried that it may actually operate to extend the
 
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law in an uncertain and possibly undesirable direction, and even if it does not alter the law it may increase litigation on the basis of legal advice that it may do so. So I remain as yet unconvinced that Clause 1 is a good thing, but I will not object on this occasion to its standing part.

Clause 1 agreed to.

Lord Lucas moved Amendment No. 14:

After Clause 1, insert the following new clause—

"EXCLUSION OF LIABILITY
(1) A court in considering a claim in negligence shall accept a notice excluding liability as valid if it—
(a) is displayed in such a way that it is likely to have been comprehended by the claimant at or close to the time when he decided to take the excluded risk;
(b) excludes risks which an ordinary person might reasonably be expected to evaluate;
(c) describes clearly the risks excluded.
(2) No liability in negligence shall arise in respect of risks which are obviously and necessarily entailed in an activity which the defendant has chosen to undertake."

The noble Lord said: My concern in pursuing this amendment is that there is a level of misunderstanding among the public and public authorities about what one can achieve with notices. That lack of understanding has led to the abandonment of various activities and perhaps to people taking unnecessary risks. Coming back to what I said on Amendment No. 1, in general when people take risks they should take responsibility for those risks. It should be possible, where it is reasonable to do so, for a trader or for an authority to transfer any suggestion of risk to the public and for that transfer to be secure.

An illustration that I used a long time ago in a speech in the House of Lords is that as long as butchers display a notice to the effect, they should be allowed to sell rotten meat or meat contaminated with heavy metals—as indeed they are. It is a common practice of butchers to sell high pheasants. We are used to the idea that as long as people know what they are getting they can take the risk. You say that people will accept that risk, but it is becoming increasing difficult now to organise visits for schoolchildren to farms because of farmers being sued because the kids have picked up diseases through touching the animals. The farmer ought to be secure in the idea that if he puts up a notice saying, "You may catch diseases if you touch the animals", it is up to the teachers or parents to decide whether to let their children take that risk. It ought not to come back on the farmer.

A playground in Holland Park that my children used when they were young has been closed, because it was a fairly adult place for five year-olds and up; it had quite big equipment in it, and you could have a lot of fun in it. But the council felt that it had to provide full-time supervision. Why should it not be able simply to put a notice on the gate saying, "You use this playground at your own risk. We cannot provide supervision—you take the risk"? It seems important that one can transfer the risk in that way. The noble Baroness has been kind enough to write to me saying what the existing law is. By and large, I think that is
 
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what the existing law achieves, although it seems to be overly fond of notices. In walking around the countryside, I have not seen it littered with notices. If you walk through a wood you take a lot of risks. You could slip. Badgers have the habit of digging their latrines in the middle of paths, and they will trip anybody up if they are not looking.

You are encouraged to leave dead trees because they are good for the woodpeckers and bugs, but they have a habit of dropping bits on people at one time or another. All sorts of dangers are inherent in woods, but I have yet to come across one that has a large notice excluding liability. That is the point of the second part of the amendment. Where a risk is absolutely inherent in an activity—where it is obvious that to indulge in that activity you must take those risks—there need not be a notice. I beg to move.

The Earl of Erroll: I agree with the amendment. Personally, I would love to see a law of common sense that says that some things in life are pretty obvious. The notion that you have to put at the edge of a cliff, "These cliffs are dangerous. If you walk over them, you are liable to fall 200 feet and die", is absurd. The same applies to all the other risks that are natural in our everyday life. However, given that the law seems to have proceeded down that route, having a clear statement that you can cover yourself against it would be useful. I very much agree with the second part of the amendment, which covers whether something is obvious. That is probably as close as we will get to a law of common sense. As sometimes the courts seem to take leave of their senses regarding what they seem to think people should know, restating the measure might be useful in the general spirit of Clause 1.

Baroness Ashton of Upholland: One of the great joys of being a Minister is that sometimes you get an amendment where you can talk about something quite irrelevant. When I saw the amendment on notices, I was brought back to the one bit of law I know. I actually did A-level law—you would not believe it, I know. I did contract law, and can remember the bit about having to bring the notice to the attention of the person before the contract is made. The lawyers in the Room are all nodding, so I have clearly remembered it well. The amendment warmed my heart, because at least I knew something about notices. Although that is not relevant to this part of the Bill at all, I had to get the fact that I did A-level law on the record somewhere, as I have tried to do in a variety of guises in this role.

I have enormous sympathy with the question, "What is it reasonable for people to do to draw attention to something, and when does it come down to the individual to take care and be aware of the risks involved?", which underlies the amendment. The noble Lord, Lord Lucas, used the example of a playground. Information that we received on 17 November indicated that some bodies, perhaps including local authorities, might use an excuse rather than give the real reason when they want to change or close a facility. Before a local authority writes to me to say that it was not true in this case, I must say that I am
 
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not suggesting that it was. A number of facilities that we can think of are closed on other grounds, but people believe that saying that something poses a risk is unarguable. I did not know that—it was not the Government saying that. Evidence was presented to us from organisations that have been looking at the issue. We always have to be mindful that it may happen in certain circumstances. Members of the Committee may be confronted with circumstances in which an activity is curtailed when the reason for curtailing it is not this issue at all.

There is a difficulty with the amendment. While we recognise that people take risks and that you draw attention to the risks that might be involved, one cannot exclude a liability simply via a notice. I am not suggesting that the noble Lord, Lord Lucas, wants to do that. There are circumstances in which a notice is inadequate in itself, particularly in areas where there is great danger. A notice to say, "If you run further down this pathway, you should know that it drops 150 feet", may be appropriate for an adult, but it certainly would not work for a child. It might not work for someone who is dyslexic or blind. There are loads of different cases in which one cannot effectively determine all circumstances.

I take the point about common sense and wanting to recognise that individuals take risks, but my reason for not wanting to pursue this is that we cannot take away the responsibility of people by saying that it would be enough to put a notice up.

While I do not think that that would be the intention, we might have the difficulty that it would be the effect. While we are ensuring that we do not stop activities, we must also protect people who could suffer loss because of someone else's negligence. That is also a way of curtailing activities. My children participate in activities run by good organisations because I know that they are as safe as they can be within the elements of risk that they undertake. If I thought that they were not taking the safety issue seriously, they would not be doing those activities. If it were thought that a notice was sufficient when I knew that in reality it might not be, my children would not participate. Again, that would take us in a different direction and we would not see the activities happen.

Although that is not what the noble Lord intends with the amendment, we run the risk of that being the effect. I hope that on that basis alone he is able to withdraw it.

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