Compensation Bill [HL]

My Lords, I ought to declare a slight interest as an office-bearer in the All-Party Parliamentary Group on Risk and Adventure in Society. We have had some useful discussions with the Minister between Committee and Report. We realised that, although we would like to strengthen Clause 1—I shall explain why in a moment—it would probably not be possible considering the weight of the vested interests in the legal beagles in this House, who would make sure that we failed. Therefore, all we could really hope for was a Statement from the Government on some points with which we have serious issue and where the courts have been drifting in the wrong direction. I thank the Minister for the great help which she gave us. I disagree entirely with the noble Lord, Lord Goodhart. I was interested by the comments of the noble and learned Lord, Lord Ackner: it is broke and it does need fixing. He convinced me that we should change ““may”” to ““should””. Unfortunately, I do not think that we would get that amendment through. We will leave it for another place to put in some of these amendments, because I know that the issue will be spoken to there. Some very silly judgments have occurred and a lot of publicity has been given to them. The law is misunderstood. If it is as the noble Lord, Lord Goodhart, said, it is widely misunderstood outside. It is not true that the law is understood and that it is okay. The lawyers have a vested interest in litigation and, even if no litigation is being entered into, in advising groups at huge expense on what they can and cannot do—it is usually ““cannot””—producing many reams of paper in the process. School trips are already being cancelled. I know of several school trips to foreign parts and in this country which have been cancelled. My wife is a school governor. Her school has had to cancel trips on the advice of people in the school. They do not want to take the risk. The perception out there is that there is a risk. We know that these things are falling, and whatever statistics are produced on the other side, I am afraid that there are counter-statistics. I do not have those with me, but I am quite sure they will be produced in another place in more detail. Common law can still evolve; all we are trying to do is put a stake in the ground and say, ““We think that the courts, as the legislators, have been drifting in the wrong direction. Please look at which direction you are going in, and evolve the common law in a slightly different direction, strengthening the power of the risk takers in society to be able to go out and take risks””. I had thought about, and we discussed, tabling amendments on social utility along Australian lines, but we were advised that interpreting that in the courts could cause problems. There is a concept abroad of 100 per cent contributory negligence. Someone asked quite logically how you could be 100 per cent contributory. You can be 99.9999 recurring per cent contributory, but you cannot be 100 per cent contributory; that is logically or terminologically impossible. So that would fail. But the principle is still the same. At the moment, the courts ascribe very little contributory negligence to people who have done some very stupid things. Parents present with their children have sometimes overruled instructors on the ground, and have been responsible for their children’s serious injury or even death, despite the instructors trying to prevent them from doing so. When you are in charge of a group of several children and a parent insists on taking their child off to do something which you have said no to, how do you stop that? You would be guilty of an assault if you physically restrained them, so what do you physically do? One has to be realistic about this. The courts have not been very kind to groups such as the Scouts and other voluntary groups who take people out. I was an inveterate risk-taker in my youth, and never thought that I would be alive today. When someone tried to sell me a pension, I explained that I would be dead by the millennium, so there was very little point in my having one. I used to climb rocks. I have led climbs that I should not have undertaken because they were slightly beyond me. Half way up, I realised that I would be dead if I did not reach the next handhold, because I had a 60-foot fall below me and I had not put in proper protection. That is how you learn. You learn to control your twitching muscles, and you learn to go for it. For some strange reason, I have survived. At the end of the day, it was my choice. I am afraid that one does such things but, in general, most people survive; that is the most remarkable thing about it. Do not ask me why but, in many ways, fewer people get injured than should do. I, as a responsible parent, should say to the noble Lord, Lord Goodhart, in response to his point about the parent going out with the instructor, that not every instructor knows everything. You learn only through experience. You can be taught only so much in a classroom, but until you have been in a tricky situation yourself, you do not really know how to deal with it and how to get out of it. Parents should be responsible for choosing which level of instructor their children go with. It is ridiculous automatically to expect the best instructor in the world to be in charge, with huge experience of getting people out of difficulty, just because there is a trip on, which some group has put on. You, as a parent, should decide whether the certification of that instructor is good enough. If you want to sign your child up with a silly instructor, that is your fault, in my mind. My wife and I have just been reading our health and safety instructions for the estate. My wife must physically check the certificates of competence of the contractors who come on to the farm, and she is liable if they are not up to it. It is not only the contractors who are liable. So I do not see why parents’ actions should not be considered contributory to a large extent. That brings me swiftly—I shall finish very soon—to the point made by the noble Lord, Lord Lucas. I had thought of tabling an amendment on this, but when I saw the amendment tabled by the noble Lord, Lord Goodhart, I realised that it could equally and easily be dealt with alongside his proposal to strike out Clause 1. Again, I do not think that it would be accepted, because it would clarify the law too much for the lawyers who want to have something to fight over. Landowners are exposed to huge amounts of liability. If, for instance, there is a fun run on your footpath and people, such as marshals, stop on it, they no longer comply with what the footpath is to be used for in law. It is the landowner’s responsibility to ensure that those people move on. If some injury takes place on that land, apparently the landlord will have contributory liability. That is the advice from insurance companies. Therefore, my wife has to check the insurance of any fun run taking place on the estate. The fun runners do not believe that and recently we have had major rows because they thought that they were covered under parish council insurance, but they are not. In law at the moment it is not clear on where a landowner’s responsibility stops, even when a public footpath is being used. The burden of responsibility is ridiculous. Landlords are being forced to take a view that it may be safer not to allow such events to take place and not to have Scouts on the ground. We are having to carry out a health and safety risk assessment to decide how dangerous it is for Scouts to camp among the trees, what the risk is of them lighting a bonfire that might get out of control, and what is the risk of a branch falling. Of course, under some of the environment and forestry regulations, we may not be allowed to cut down a branch if, for instance, it has some rare flora or fauna attached to it and there may well be an order that prevents us removing a branch. The world becomes very complicated, which lawyers love. It is a minefield. We need protection, otherwise I am afraid that the countryside will be closed down to public access as much as possible. We must realise that. That is a result of the attitude of the noble Lord, Lord Goodhart, the noble Viscount, Lord Eccles, and the noble and learned Lord, Lord Ackner, to the situation. Please leave risk-takers to take risks. Interestingly, recent research has discovered that those who had adrenalin pumping through their blood when they were young as a result of taking risks live longer. I would rather have a few more exciting hours or days of life that I can enjoy than a few years drooling in a wheelchair when I can do nothing. That is my attitude to life. I am also better able to deal with danger because I dealt with it when I was young, when my reactions were good and fast. I have learnt how to deal with risk. We should allow our young to develop that sense. Please do not take this terribly safe route. They are going to die anyway and you will only expose them to greater danger when they are older because they will not know how to deal with it.