HL Deb 27 October 1983 vol 444 cc384-91

4.40 p.m.

House again in Committee.

Clause 2 [Visitors using premises for recreation: modification of Unfair Contract Terms Act 1977]:

Lord Mottistone moved Amendment No. 6:

[Printed earlier.]

The noble Lord said: In moving this amendment I am advised by the Confederation of British Industry that this takes us into an industrial scene rather than into the agricultural one we have had so far. The amendment consists of two words, and I shall be intrigued to see whether noble Lords learned in the law will be able to confuse us as much as they have done on earlier amendments despite the simple wording that is involved.

Amendment No. 6 is designed to remove any doubt whether educational visits—for example, to study geology in quarries—are covered by the provisions of Clause 2. Access is likely to be denied to students if the law does not reassure occupiers on this point. The minerals industry, for instance, is already increasingly chary of admitting students to sites of particular geological interest. If this clause specifies recreational purposes without mentioning also educational purposes, education will suffer.

Students come in various shapes and sizes. Some are from local schools, some are geologists on advance courses, some are even members of conferences studying the problems of waste disposal. Inquiries in the industry show a modest, steady flow of student visits with a peak around Easter for university field trips. There is no doubt that if industry is not reassured on this point, students will find it more difficult to obtain field experience and their education will suffer.

As well as these points, which are made principally by those who have the responsibility for the ownership of quarries, I am advised by the National Farmers' Union that there is an interest in this area by farmers. I am also advised by the Youth Hostels Association that they support this amendment, certainly in principle, in order to encourage access for educational purposes in outdoor pursuits and field studies. They go on to say that, in expressing support for the acceptance by the public of reasonable risks in exchange for a right of access, they must emphasise that safety advice and guidance off hostel premises will continue to be given a high priority in the interests of members—particularly of young people.

I believe there is a good justification for this amendment. It seems to me that to limit this particular section of the Bill to recreational purposes only would be unnecessarily limiting. The educational aspects are important and need this amendment in order that people will be encouraged to give the facilities required. I beg to move.

Lord Renton

May I just state the position that arises with naturalists' trusts—of which there are a number all over the country—who arrange nature trails, sometimes on their own properties when they have open days, and sometimes on other people's property by arrangement with the occupier. These nature trails take people through woods, over marshes, and all over the place. It would be a very great encouragement to occupiers to co-operate if they found that, for example, they would not be held liable if they had not marked all the rabbit holes or some drop over a stream for which they would otherwise be made liable.

I remember one very serious case when, alas, a death occurred. It involved a pond that was completely covered by waterweed—so much so that a child could not distinguish the pond from the land. Sometimes waterweed can grow very fast, and if it is in a remote corner of a property, the owner may not even know that the pond has been covered by waterweed. In those circumstances, it would be wrong for the position not to be covered by the kind of amendment which my noble friend Lord Mottistone has suggested, and which I should like to support.

The Lord Chancellor

My noble friend, in moving this amendment, complained that he had been confused by what I had said in the past. For fear of confusing him still further, I will simply say that I accept this amendment.

Lord Mishcon

We on this side are delighted that the noble and learned Lord has accepted this amendment.

Lord Mottistone

In making my opening remarks, I was not casting aspersions against my noble and learned friend the Lord Chancellor; I was casting them over the many legal luminaries who were confusing us from all sides of the Committee on the earlier amendment. On the whole, my noble and learned friend was clearer than many of the others. I thank him greatly for accepting the amendment.

On Question, amendment agreed to.

4.46 p.m.

Lord Stanley of Alderley moved Amendment No. 7:

[Printed earlier.]

The noble Lord said: With the Committee's permission, I will speak also to Amendment No. 8. [Printed earlier.]

These amendments clarify the position referred to in Second Reading by the noble Lords, Lord Mishcon and Lord Gisborough, and by my noble and learned friend the Lord Chancellor. The purpose of these two amendments is to make it possible for an occupier to make a small charge for access or, indeed, recreation. It is not intended to exempt the occupier who conducts recreation as a business. The problem occurs when it is difficult for the occupier to protect his legal rights without making a charge.

For instance, it may be impossible to close a gate once a year in a part or on a moor, or to put up a notice. A small charge would protect the occupier from granting a permanent right. I hope my noble and learned friend will agree that this amendment would encourage occupiers to grant access to the public, and, further to my noble friend's remarks on Second Reading, simply as a matter of neighbourliness and goodwill.

I read with interest the Law Society's letter to the noble Lord, Lord Mishcon, printed in the Official Report for the Second Reading on 12th July (col. 725). It seemed to me to recommend a harder line than that proposed in my amendment. Once again, I feel sure from the remarks made by my noble and learned friend at Second Reading that I will have his sympathy. I hope he will be able to accept this amendment or one similar to it. The matter certainly needs clarification. For instance, would an "honesty box" on the premises make the occupier liable as a business premises? Surely not. I beg to move.

Lord Mishcon

I wonder if it would be for the convenience of the Committee if in joining in the debate on this amendment I spoke to my amendment, Amendment No. 9? The Committee will therefore be spared another speech. The subject matter is the same. My amendment is intended purely and simply as a probing amendment—and I wish to make that quite clear to the Committee. As the noble Lord who has just spoken made clear, the Law Society, among many other organisations, is very worried at the complete lack of definition of the term "business purposes". It is no good, if I may say so in all frankness to the Committee, saying that the courts are very wide in their understanding and very wise in their judgment in the use of words, and therefore could easily ascertain, if a case came before them, whether the case came within the meaning of the words contained at lines 4 and 5 on page 3, that the granting of access, for the purposes concerned falls within the business purposes of the occupier". "Business purposes of the occupier"? The occupier may be a limited company. Are the purposes to be gleaned by the court from the very wide objects clauses that occur so often in a memorandum of association? Is the court to take evidence of what was the actual business carried on, irrespective of what the objects of the company are as set out in the memorandum? What does constitute a business? The noble Lord, Lord Stanley, has drawn attention—as I wanted to do in my probing amendment—to this question: do you, for example, if you make a charge to somebody who asks for access to your land, carry on a business when you make that charge merely one that covers you for expenses? And what are the expenses? Are they the expenses generally for carrying on your land? What is the quantum that has to be divided among the numerous people who may ask for access? Is it to be an estimate in regard to those expenses accompanied by an estimate of the number of people who in a year might ask for access? Do you try to find that notional number and use that as a dividing factor into what you think are the overheads? If the overheads are chargeable, as the court might hold, to other business interests of the occupier, does he fall foul of these words?

The Law Society did make representations to the Lord Chancellor's Department. Those representations were greeted with the courtesy always extended by that department, and the answer was that more confusion might be caused by endeavouring to define business purposes than would be caused by leaving these words as they are. Again I say, with great respect, that that is not good enough. People do not want to be forced into an action at law. People want to know when a Bill is passed by Parliament where they stand. Advisers want to be able to tell them. Have you got to insure against these risks? You may fall foul of this Act and be caught for a liability if you do not.

I say quite frankly, as a humble practitioner of the law, that I would have to go into very detailed investigation before I could advise the person who came to me as to whether or not the making of some charge, any kind of charge—an example is the box that was mentioned by the noble Lord, Lord Stanley, that stands at the gate where you contribute what you like if you are granted access to the premises—makes him liable under this Bill. That was the reason for my probing amendment. I feel, if I may say so with respect, that the noble and learned Lord ought to give much closer attention to the use of these words "business purposes", and not merely—I hesitate to use the phrase "fob off" the Committee because the noble and learned Lord is not capable of doing any such thing—but I do feel that the Committee must, in exercise of its duty, ask the noble and learned Lord to come at some stage of this Bill—I would hope it would be the next stage—with an effort to define what business purposes are. If that cannot be done, it may be neccessary to put specifically in the Bill whether or not certain circumstances will amount to a business purpose, and whether, for example, the making of any charge on a certain basis will exempt the proprietor of the land or will not exempt the proprietor of the land from liability under this Bill. As I said, I will not be making a further speech, but I hope your Lordships will now realise why I put down the amendment.

Lord Renton

The noble Lord made it clear that his was a probing amendment, and I have regarded my noble friends' two amendments, to which I let my name be added, as probing amendments also. As the noble Lord, Lord Mishcon, has pointed out, this is a rather difficult matter. So many different circumstances can arise, and we have to be very careful indeed that we do not discourage, for example, the riparian owners of water where there is fishing and angling from allowing angling clubs to go on the land. Sometimes it is necessary to incur modest expense to enable people to have access to the land for the purpose of angling. You may have to put up a fence when there are cattle about to prevent the anglers being disturbed by the cattle. Yet nobody would say that the letting of the angling right to the members of the angling clubs was a business. It is not intended to be profit-making. Therefore, we do need to make sure that in circumstances like that, and other circumstances mentioned by the noble Lord, there is not a discouragement to the use of the land.

If I may add one postscript to the noble Lord's speech, one of his noble friends mentioned earlier in the debate that the largest landowners were the Co-operative Societies. It surprised me very much, but they are very considerable landowners. Their business is the business of supplying the public with various things. Farming is an ancillary business. Yet if they are letting people on to the land for recreational or educational purposes it could not be said that doing so was part of the Co-operative Wholesale or Retail Societies' business or part of their farming business. So this matter does need consideration, and perhaps at a later stage my noble friend may feel that some simple amendment to this clause would help everybody.

The Earl of Caithness

The case has been very well put. I would merely add that, as an advisor to occupiers of land, both commercial and agricultural premises, there is no doubt what one's advice must be under the current law. If you cannot let somebody on free and you have to make some sort of charge, do not prevent them from coming on. This is not something one is keen to see continue, particularly in view of the last amendment of my noble friend Lord Mottistone, which was to add the word "educational". Even if it is for educational purposes, if there is a charge, I understand that it would put the occupier in an invidious position. I look forward very much to hearing the thoughts of my noble and learned friend on our amendments.

The Lord Chancellor

The one amendment to which the noble Lord, Lord Mishcon, has spoken and the two to which my noble friends have spoken, move, as it were, in the opposite direction from one another, but they do, I think, suffer from a common defect. I think both really overlook the context in which the clause which they seek to amend exists. This arises in the present Bill out of the anxiety which was felt by certain occupiers that they would not be able to exclude from liability risks by reason of the terms of the Unfair Contract Terms Act 1977, which, incidentally, I supported when I was sitting on the Bench opposite.

Having got that clearly in mind, I turn now to the noble Lord, Lord Mishcon, and say that the words "business purposes" were taken straight out of that Act when it was proposed by the Government of which he was such an ardent and distinguished supporter. I think it is a pretty good phrase. I supported it at the time and I support it now. It was not thought in the much wider context of the Unfair Contract Terms Act that the phrase needed so much explanation as the noble Lord seems, by his probing amendment, to think it requires when I in my modest little way insert a very tiny amendment in order to help the occupiers of land who allow people on to their land other than for the purposes of business. The expression "a business" and therefore by implication "business purposes" has been the subject of considerable judicial authority. I would rather not try to pontificate about that because if I spoke impromptu on this rather wide and thorny subject I should get into rather deep water, but I think it is fairly well established.

Only the other day I was reading the prints of one of the Halsbury Laws of England articles under the new title of Trade and Industry, when I looked into the question of what "business" meant. It covers a very wide range of activities. The authorities are perfectly well assembled, I think, under the existing article, but certainly in the article where it comes out of the replacement volume. However, I should not like to pontificate about that.

If there is anything I want to add, I should like to think about it and obtain advice and I will write to the noble Lord. However, I do not know that there will be, because this is only an amendment to an Act which already uses the phrase, and a very small peripheral amendment at that.

Turning to the two amendments of my noble friends, I think that they, too, have forgotten that what we are doing is to make a concession to occupiers so that they will in some circumstances be freed from an obligation under which they now are by reason of the Unfair Contract Terms Act. Therefore, much of what was said—that occupiers are entitled to have their minds completely set at rest—should be seen in the light of the fact that we are enlarging their freedom of action which was previously constrained or would have been constrained.

Of the two amendments proposed, the first deals with the same point which was contained in the amendment of the noble Lord, Lord Mishcon, about whether or not a charge is conclusive of the liability being a business liability or the liability being incurred for the business purpose. My answer both to the noble Lord, Lord Mishcon, and to my noble friends is that a charge is relevant but not conclusive. It is relevant because obviously the ordinary purpose for which one charges money for entering on to land or carrying on activities on it is likely to be a business purpose. But that is not necessarily so. I am not quite sure what an honesty box is because if one does not make a charge I do not see how it can be dishonest not to pay one on the part of the entrant. But it may well be that there is an esoteric meaning to "honesty box" which covers that situation where no charge is made but the man feels dishonest if he does not put money into the box. My answer is that the payment of money is relevant to considering whether the purpose is a "business purpose", but it is not necessarily conclusive.

I understand that it has been seriously suggested—although I think it is a little fanciful myself—that one reason for making a charge is to stop a right of way from being set up. I am not sure that I go along with that anxiety but it is perfectly possible and if that were the only purpose of charging I suppose it would not be a business purpose.

The converse, which my noble friends seek to introduce with their second amendment, is open to rather more serious objections. In Amendment No. 8 they want to insert "a substantial business purpose" in place of "the business purposes". That is open to more serious objections. I can conceive of people being unclear about the meaning of "business purposes" although I am not sure how many people, properly advised, would be unclear. But when the words "a substantial business purpose" are inserted into a Bill I begin to reach for my six-shooter. I can conceive of an endless tide of disputes and litigation arising. There are serious objections to "a substantial business purpose".

I hope that I have answered the first part when I say that, in my judgment, payment of money is obviously a relevant factor but not necessarily a conclusive factor. If I may look into the Law Society's point more closely, and I think I can expatiate or correct anything I have said, I will be only too happy to do so.

Lord Mishcon

I am more than grateful to the noble and learned Lord for his very courteous and gracious remarks. It may help if I were to amplify just a little in view of what the noble and learned Lord has said. It is one thing, with respect, to have in an Act of Parliament which deals with broad commercial considerations and with a whole gamut of businesses, whether or not under the Act one should say that if one puts conditions in a contract which is obviously a commercial contract they are to be deemed effectual or ineffectual as a result of their fairness or unfairness. I at once concede that when one is dealing with such a broad panorama one obviously must use broad words such as "business purposes". But when one comes to legislate for an exception and one, therefore, casts one's gaze very narrowly on one aspect of user, and that is the user of land whether it be for recreational or educational purposes, at that stage one is required—if I may say so very humbly—as a legislator to concentrate one's gaze much more closely and to say, "I am looking at only one aspect; one type of permission to occupy, and that is the occupation of land". Then, of course, one is called upon as a legislator to say what one means by "business purposes" in regard to that limited user.

I can imagine—and no one has a greater imagination or experience in regard to these matters than the noble and learned Lord—what will be the effect of quoting him in a court of law as saying—and I took down his words very carefully: A charge is relevant but not conclusive". I can imagine, if I may again say with all humility, the learned judge saying, "What a helpful expression. It does nothing for me. It tells me that it is relevant. It tells me it is not conclusive. Now what am I to find? Am I to find that a very large charge is carrying on a business? Have I to decide that a moderate charge is possibly carrying on a business, and a small charge is not carrying on a business at all? This Act is silent and the legislators ought to have known better".

Having ventured to presume to be a judge in these circumstances, I know that the Committee can, having regard to the helpful words of the noble and learned Lord, leave him to consider what has been said in this debate on what are admitted to be probing amendments and to come out, with his usual wisdom, on Report with a solution to our problems.

Lord Stanley of Alderley

I made an initial remark about little legal problems of drafting, but I now feel that they are somewhat more than little. Nevertheless I am very grateful for the attention, which I appreciate is constructive, given by noble Lords in trying to clarify the position. My worry is still that if any charge is made, does the occupier become liable, and I understand from my noble and learned friend that the answer is yes, maybe. My noble and learned friend says that I am asking too much. Having obtained a concession, which I accept, under the Unfair Contract Terms Act 1977, yes, I am now asking for another one.

I would put my noble and learned friend right on the question regarding the honesty box, if I may, as a matter of technicality. It is quite common to have a box at the beginning of one's path or gate, inviting people to put something in it towards the upkeep of the path, or whatever it is. I think that that is what I am trying to say about the honesty box—

The Lord Chancellor

Charity box.

Lord Stanley of Alderley

We have it also for charity. We also have it for the RNLI and other organisations. They do rather better than ours for our own cases.

My noble and learned friend says that a charge may make the occupier liable and it is in the hands of the court. I understand that. I accept the point he makes that he will look at the matter again. I should like him to look in particular at my Amendment No. 7, which might help the courts a little. With regard to my Amendment No. 8, without being too flippant, I should like to say that perhaps the word "insubstantial", or some such word, might be better than "substantial". But I am sure that my noble and learned friend can think of a word that would satisfy what we are all trying to get at. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 8 and 9 not moved.]

Clause 2, as amended, agreed to.

Remaining clauses agreed to.

House resumed: Bill reported with the amendments.