Compensation Bill [HL]

The picture of the cow and the fat lawyer, to which the noble Earl, Lord Erroll, referred, was for many years, and, for all I know, may still be, in the display window at Wildy’s legal bookshop in Lincoln’s Inn. When I was in practice, my chambers were next door, so I saw that picture every day of my working life. We have had a lot of discussion about the tree. I think it is slightly misguided, because the tree is not provided for the benefit of children and is not normally a glorified climbing frame for them. It is normally there to provide shade and beauty in a public park, and I can well imagine situations in which it was obvious that the branches of a tree were in such a state that they might tempt young children to climb them and injury themselves. That could well be negligent. However, if we are saddled with Clause 1, we should try to make it as good as possible. I entirely agree with the noble Lord, Lord Hunt, that the main problem is the use of the phrase ““desirable activity””. It raises the questions of desirable to whom? What are the criteria for deciding what is desirable? What distinguishes what is desirable from what is undesirable? All those add unnecessary complications. It is much better to use the test of public benefit or public interest. That is a clearer definition by far than using ““desirable activity””, and the courts would not have great difficulty deciding what is in the public interest or for the public benefit; it is the sort of decision that courts constantly have to take. That reflects the views of the Appellate Committee on the Tomlinson case, where an adverse decision from the Lords might well have led to the closure of a public park—at least for a period while works were undertaken to make sure that the quarry in which the lake was situated was totally inaccessible. Therefore, I am happy to support Amendment No. 3—it is rather better than my Amendment No. 4—because it adds ““facility”” to ““activity””. In many cases, it is the facility rather than the activity that needs to be protected. That was probably the case in Tomlinson—that what was protected was the facility rather than any particular activity in it. In consequence, I should say that I shall therefore not move Amendments Nos. 4 or 6, which had originally been grouped with Amendment No. 3 but were then de-grouped. I do not need to say anything further about them. Having got that far, I do not think it either practicable or desirable to try to define public interest or public benefit, and it is better to leave it to the courts. Any definition could lead to the exclusion of activities that were in the public interest, or the inclusion of activities that were not. Frankly, I agree with all the criticisms that I have heard of Amendment No. 13. Indeed, I can go rather further than that and say that it would be disastrous on two grounds. First, it would plainly indicate to the courts that they were to apply different legal principles to those groups that fell within the category from those that did not. Secondly, it would lead to a great deal of satellite litigation about whether any particular activity fell within one of the categories. I am entirely opposed to Amendment No. 13, but equally entirely happy with Amendment No. 3.