Compensation Bill [HL]

moved Amendment No. 9:"Page 1, line 11, at end insert ““, or" (   )   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""(b) discourage persons from undertaking functions in connection with a desirable activity, 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 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.