HC Deb 20 February 1984 vol 54 cc661-70

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Mr. John Morris (Aberavon)

I beg to move amendment No. 1, in page 3, line 10, leave out from 'occupier' to end of line 12 and insert '(whether the occupier makes a charge or not) unless the granting of such access by the occupier constitutes a commercial activity'. I do not think that any hon. Member who sat on the Committee considering this Bill would accuse me of undue prolixity and I do not intend to alter my approach tonight. In Committee, we discussed two different amendments that had the same objective as amendment No. 1. Their objective, like that of amendment No. 1, was to remove anxiety from those who make their land available for recreational or educational purposes not being by way of business of the occupiers.

On Second Reading the Solicitor-General said that five years of the working of the Unfair Contract Terms Act had resulted in one unintended effect. It had reduced access to the countryside and so the provisions needed fine tuning.

That was certainly queried in the course of our discussions. At one stage the Solicitor-General said: The question may be asked, 'Will landowners change their practice if the law is amended? Will they not continue to refuse access?"' The right hon. and learned Gentleman then said: There is good reason for optimism. He concluded by saying: For those reasons the object of clause 2 is one that I believe will be supported not only by the Central Council for Physical Recreation but by landowners who wish to see access to their land put back on a proper legal footing."—[Official Report, Second Reading Committee, 14 December 1983; c. 6.] I think that I said that the words "I believe" were akin to a rather weak affidavit on the part of the Solicitor-General, and that those words were not the firmest that he could have used if he had been confident that he would have the support of the Central Council for Physical Recreation.

In due course we returned to the matter in Committee, but the Solicitor-General was quite satisfied that the clause, without any amendment being made, was "clear, unambiguous and helpful."

In reply I said that he had pitched his flag rather high. I said that I would be pleased if the fears that I had expressed carried the message of the Central Council for Physical Recreation, the National Farmers Union, the Country Landowners Association and the Law Society and that there would be "great joy in heaven" if they were so satisfied with the Solicitor-General's observations that they withdrew their objections. I invited them so to do.

The sky tonight is black with chickens coming home to roost. I have received a letter from the CCPR which states: I regret that we are still most unhappy regarding the wording of clause 2 despite the reassurance given by the Solicitor-General. In fact, because this problem has been highlighted we are fearful that landowners will be even less likely than before to grant access if in levying a charge to cover expenses they run a risk of being unable to contract out of liability for injury, etc. The Country Landowners Association differs in its view from what the Lord Chancellor said on Report in another place. He said that if one started charging one would be in difficulties because, broadly speaking, the activity would become a business activity.

The Solicitor-General was much more robust. In Committee he said: There will be cases of a small charge being made which might go to the gardeners' benevolent fund or to pay the wages of a gatekeeper who controls entry onto the land or into gardens. No one could sensibly say or would ever suppose that the occupier is thereby running a business."—[Official Report, Standing Committee J, 2 February 1984; c. 8.] I do not wish to intrude into the private grief of a conflict between the Lord Chancellor and the Solicitor-General, but the divergence of views does not assist those who must use and rely upon the clause. They are the people for whose benefit it is intended. The idea was to remove the anxiety, to ensure clarity and to ensure that the Government did good, not by stealth but openly. Unfortunately, having tried to do good, the Government have not satisfied the Country Landowners Association because it says: Unless the amendment is made, CLO (and NFU, which supports this amendment) will not know how to advise their members; perhaps their advice should be to be safe rather than sorry. The National Farmers Union said: we would like to place it on record that we do not consider his answer to the criticisms of Clause 2 to be adequate, because the Clause is concerned with very special circumstances. Earlier, it said: If any occupier is in doubt as to his position and he is properly advised, he will refuse access for recreational or educational purposes rather than risk potentially costly litigation over a question which is likely to be of little or no consequence to him financially. Three out of the four bodies which I invited to give me an assurance that would have put me at my ease failed to give that assurance. If they had given that assurance, I should have been satisfied. The only body which did not rise to the bait was the Law Society. Perhaps, since the Government are proposing to give conveyancing rights to bankers, building societies and others, it has greater things to contemplate. It cannot be that the Government have failed in their mission, a worthy one, of seeking to allay anxiety, of seeking to avoid the unintended consequences of the Unfair Contract Terms Act and to ensure that people have access to the countryside. It is regrettable, however—it will remain the case unless an amendment of this kind is accepted—that those fears remain.

Mr. John Heddle (Mid-Staffordshire)

I feel greatly outnumbered this evening. I am not a lawyer, nor am I qualified to discuss the legal definition of "a business". I am a mere surveyor, but I joined the right hon. and learned Member for Aberavon (Mr. Morris) in tabling the amendment because I am a member of the legal and parliamentary committee of the Country Landowners Association.

The right hon. and learned Gentleman said that the sky was not blue. I think that it is; indeed, in my view the economy is getting bluer by the day. It is certain, however, that the law is not black or white, and it is in an effort to ensure that the law becomes more clearly defined that we tabled the amendment.

The spirit of clause 2 is to amend, and perhaps more closely define, the terms of the Unfair Contract Terms Act 1977 so as to exclude from its strict liability provisions the situation where an occupier allows access to premises and is able to contract out of liability should those premises be opened up and used for educational and recreational purposes. In that event, the occupier will be able to contract out of liability for accidental damage occasioned to people who are invited on to premises, for example to look at a country house, at its contents or at the farming methods.

The problem that arises is whether his intention is to carry out that activity—to invite on to premises members of the general public for educational and recreational purposes—for business purposes, which means for profit, or as part of his intention to educate those who do not readily have access to agricultural holdings, country estates, and so on.

It seems that the definition of "a business" as drafted is somewhat vague. Perhaps when he replies the Minister will advise me—and so advise members of the Country Landowners Association—whether he feels it should be left in its vague definition as at present, or whether that vagueness should be tightened so as to make the legal definition of "a business" more black and white.

Under clause 2 as drafted, the occupier will not know whether he can safely levy a charge for access to premises to enable the general public to look at the contents. For example, if he levies a charge he will be faced with the decision whether that charge is for a business activity or is simply to defray out-of-pocket expenses to cover the outgoings necessarily incurred in making those premises available to the general public.

What happens if the occupier makes a profit, perhaps inadvertently? What happens, for example, if more people than he anticipated decide to take advantage of the facilities that he is offering to the general public for educational and recreational purposes? I understand that the word "business" suffers from a surfeit of conflicting definitions. Not being a lawyer, I do not know what those definitions may be. I only know that in Committee my right hon. and learned Friend said something along these lines: "There will be cases of a small charge being made which might go to the gardeners' benevolent fund or to pay the wages of a gatekeeper who controls entry into the land or gardens." No one could sensibly say whether those charges would go towards defining the business, or recreation and education purposes, as being a business in the legal sense of the word. There seems to be an area that is grey rather than black and white. I defer to my right hon. and learned Friend, but I ask him to consider whether it would not be better to have a more precise definition of what a business really is in the context of opening country houses, farms, estates and other premises that are used for recreation and education purposes, and for that definition to be built into the Bill.

10.15 pm

An occupier at one end of the scale who is in the "recreation business" should not benefit from the exemption from the 1977 Act. Obviously a person at the other end of the scale who gratuitously allows access should surely be able to benefit. What about the many who own farms and estates who fall within the two broad categories? It is for them, who make up the broad membership of the NFU and the Country Landowners Association, that I thought it appropriate to append my name to the amendment.

I started by saying that I am not a lawyer, but I am sure that, as in all other matters, lawyers will have the last word. I look forward to the honeyed and pearled words of wisdom of my right hon. and learned Friend.

Mr. Andrew F. Bennett (Denton and Reddish)

I support the amendment. Somehow the law and recreation do not seem to fit together especially well in the United Kingdom. When I first became a member of a local council I became aware of the problems that were experienced with open spaces around schools. All the open spaces carried notices telling people not to trespass on them. When I made inquiries of the education department I discovered that it did not matter to it whether children went on to the land. The notices had been erected to satisfy lawyers in the legal department that, as long as notices were displayed telling people not to go on to the open spaces, the local authority would not be liable if youngsters used the open spaces and had an accident. That was the approach of the legal boffins.

The Bill has entered the House largely because of the fear of landowners that if they allowed the public to climb on rocks, to pothole or to participate in water sports, they could become liable for accidents suffered by individuals because they had allowed them to go on to their land.

I was out climbing recently and I stopped at a farm to ask whether it was all right to leave my car at the edge of a farmyard. I asked the farmer whether it would be in his way and, secondly, whether I could climb on to some of his rocks. He explained that he did not like giving permission for such things because he had been told by a lawyer who advised the NFU that if he said it was all right for someone to park his car and to climb on his rocks, he might be liable for any damage done to the car or for injuries if an individual happened to fall while climbing.

I hoped that the Bill might make the present legislation much clearer. I hoped that it would make it clear that if people went mountaineering or rock climbing on someone's land, or if they went potholing or engaged in water sports on a river or lake within someone's land, the owner of the property would not be liable for any accidents they incurred. I understand that the main part of the Bill is designed to make that clearer, but within clause 2 we come to the problem of the possibility that someone who charges for something which is ancillary to the activity, or in some instances is necessary for it, may become liable for accidents that occur. I have not come across anyone who has had the cheek to charge for someone to climb on to rocks, but it is fairly common for people to charge for car parking on land close to where people climb. If a farmer charges someone to park his car on a field and firmly says that the charge is for car parking, I am not sure whether the owner of the land, under the Bill as it stands, is liable for accidents which occur while that person goes rock climbing. That would be absurd. If there is doubt in the legislation, it may encourage some farmers who do not wish to encourage rock climbing to be especially cautious.

I could repeat the same arguments for potholing. There are the same problems. It is rare for farmers to charge someone to go down a pothole on their land, but it is common for them to charge for car parking, which is ancillary to the potholing.

The position is different with water sports. Frequently, a small charge is levelled for people to go fishing or boating. Usually, the justification is that it is necessary to maintain the waterway by providing drainage, repairing banks and carrying out other activities. It is important that it is made clear that, if people are providing services enabling water sports to be provided and are making a profit not necessarily from the water sport but from car parking and the provision of refreshments, they are not liable for any accidents.

I am sure that people who go into the countryside for recreation—whether for climbing, potholing or water sports — are well aware that they are responsible for their own safety. They accept that it is their responsibility to apply for insurance. If they feel that the landowner has done something that makes the area less safe, for instance by putting barbed wire across fences which people have a right of way to cross, or by putting bulls in the field, they believe that the landowner should be liable. They would not want the landowner to be liable for actions which they had chosen to carry out. They would not want legislation that would discourage landowners from making rock faces, potholes and water areas available. I hope that the Solicitor-General can assure us that the legislation will not leave any ambiguity or the possibility that it will be more difficult for people to enjoy the countryside.

I support the amendment. I hope that the Solicitor-General will accept the amendment or give assurances that the law will be clear and will encourage, not discourage, the use of the countryside.

Mr. Gerald Bermingham (St. Helens, South)

The Bill as drafted leaves open the question of the hon. Member for Mid-Staffordshire (Mr. Heddle) about what is meant by a business activity. While that question remains open, people who occasionally allow the use of their land on open days and for visits by a school or other groups to a farmyard—that is necessary for children who live in urban areas if they are to see anything of the countryside—or who let part of their farm or estate need to be thoroughly protected. That is why I support the amendment moved by my right hon. and learned Friend the Member for Aberavon (Mr. Morris).

We should all like greater access to and use of these facilities. The matter has been discussed at length. If, after the Bill has been considered, people still have the same concerns and reservations about the use of facilities such as estates and farms, it is only right that the House and the Government should take note of what they are saying. Those people are speaking from experience and saying that the Bill as drafted fails to meet the problems which they foresee. There is a risk to those who allow occasional use of their land, whether for a small charge or no charge. They still face the risk of liability for incidents that might occur through no fault of their own when that land is used.

The amendment is extremely simple and clear. I hope that the Government at this late stage will have the courage to accept that the wording is better than that in the Bill. It removes doubts and makes the situation such that all can understand it. I should have declared an interest at the beginning of my speech, in that I am a solicitor. There is nothing worse than passing an Act of Parliament that is left so wide open that, as with the current law, lawyers can play on the accidents and injuries of others. Surely it is not too much to ask the Government, even at this late stage, to accept the amendment, which removes that possibility and means that ordinary people are granted greater access to the countryside. It also enables landowners to open up their land to many more citizens, without risk or worry on their part.

The Solicitor-General (Sir Patrick Mayhew)

I am grateful to hon. Members who have taken part in this short debate. It is one of those debates in which we find ourselves on common ground on the objective, which is that landowners should not be deterred by any provision of the law from granting access to their land for purposes of recreation or education. The possibility that they will be deterred is based upon the fact that the Unfair Contract Terms Act 1977 prevents people — I put this in shorthand—from excluding their liability for negligence, including the negligence referred to in the Occupiers' Liability Act, in circumstances in which people, in this context, are upon their land for business purposes.

The Unfair Contract Terms Act was passed by Parliament. It was an all-party measure that won general agreement because it had for long been thought unfair that by putting a clause into one's contract, one could avoid liability for harm that befell someone through one's negligence and failure to carry out obligations to others. The Act had the unintended effect that people who, out of a sense of public obligation or sheer kindness, had previously allowed people to come on to their land but had sought to exclude liability in respect of harm that befell oncomers through the condition of the premises were advised that they should no Longer do so.

The Law Commission thought about the matter because my noble and learned Friend the Lord Chancellor referred the issue to the Law Commission after the well-known case of Herrington, in which a boy of six was injured on the live rail of a railway after he had trespassed on to the railway, having reached the line by getting through a broken-down fence from a recreation field. The railway was found liable. There were five separate speeches in the House of Lords. Unfortunately, although they were unanimous about the right result, they arrived at it by slightly differing routes. That case therefore created some uncertainties about the exact state of the law. Everyone hopes that we can now overcome the fears that have led to the withholding of access. There is no disagreement about that. Nor—if I may say so to the right hon. and learned Member for Aberavon (Mr. Morris) —is there any difference between what I said in Committee, or what I am about to say now, and what my noble and learned Friend the Lord Chancellor has said on the question of a charge.

10.30 pm

The Lord Chancellor said: I now come to the amendment of my two noble Friends. This question of a charge for entry is a red herring. I have taken advice about it since, and I was right in what I said in Committee-namely, that it is a factor which is relevant in the context of the whole facts of the case but it is not conclusive either way." — [Official Report, House of Lords, 8 November 1983; Vol. 444, c. 707.] That is also the essence of what I said in Committee.

The amendment is identical in its terms to one moved in the House of Lords. I share its objectives of trying to make the statutory provision crystal clear. There should be no grey area, as my hon. Friend the Member for Mid-Staffordshire (Mr. Heddle) has said. However, in trying to do that, the amendment creates new difficulties. First, it introduces two elements not in the existing clause—the express reference to a charge, and the replacement of the concept of access within the business purposes of the occupier by the idea of the granting of access itself constituting commercial activity.

An identical amendment was moved in the other place, and two other amendments to similar effect have also been considered during the passage of the Bill. On the earliest of those occasions the Lord Chancellor said that a charge was relevant but not conclusive. It is relevant because the ordinary purpose for which one charges money for entry on to land or for carrying on activities on it is likely to be a business purpose—but that is not necessarily so. The idea of the business purpose is the key to the matter. That is the expression used in the Unfair Contract Terms Act, and the scheme of the Bill is to add to section 1(3) of that Act these words: but liability of an occupier of premises for breach of an obligation or duty towards a person obtaining access to the premises for recreational or educational purposes, being liability for loss or damage suffered by reason of the dangerous state of the premises, is not a business liability of the occupier unless granting that person such access for the purposes concerned falls within the business purposes of the occupier. Whether a charge is levied is a matter to be taken into consideration, but it will not be conclusive one way or the other as to whether that is a grant of access within the business purposes of the occupier. It is a matter for consideration, but it is only one consideration, and I do not see merit in making a specific reference to it in the Bill.

As so often, hon. Members are expecting too much from legislation. One cannot sensibly try to legislate to cover every possible factual circumstance. One has to legislate in terms of a concept and to rely upon members of the public — and, if it comes to it, the courts—to judge, using common sense, whether the facts of a case fall within that concept or outside it.

An example was raised by the hon. Member for Denton and Reddish (Mr. Bennett). In the use of a car park, if a charge is made reasonably to meet the cost of providing hard standing for cars in which people travel to look at famous limestone crags, for example, that is plainly not a business purpose of the landowner who generously makes his premises open to the public for that purpose. If, however, the car park charges form part of a great leisure complex which is a substantial source of income to the landowner who makes money commercially out of the leisure opportunities that his premises afford, it falls into a completely different category. It is not possible, for reasons that I hope I shall illustrate shortly, to specify in black and white terms exactly what the circumstances will be in every case.

If the amendment were accepted, section 1(3) of the Unfair Contract Terms Act 1977 would contain the following two expressions side by side — "business purposes" and "commercial activity". Section 1(3) reads: '(3) In the case of both contract and tort, sections 2 to 7 apply (except where the contrary is stated in section 6(4)) only to business liability, that is liability for breach of obligations or duties arising—

  1. (a) from things done or to be done by a person in the course of a business (whether his own business or another's); or
  2. (b) from the occupation of premises used for business purposes of the occupier;
and references to liability are to be read accordingly.'

If we import into that subsection the concept of commercial activity, we shall give rise to more difficulties than it is the intention of the sponsors of the amendment to get rid of. I am not sure what is intended by any distinction, but when there are different phrases in one Act of Parliament the courts must assume that they have different meanings. I confess that I do not envy the judge who, if the amendment is accepted, would be put to the task of examining the difference between "business purposes", which is already in the Act, and "commercial activity". That is a difficult matter for a court to determine, especially when there is no guidance as to what distinction is intended. Nor would I envy the unsuccessful litigant who had taken the issue to the courts and had ultimately to pay the costs, perhaps as far up the chain as the House of Lords.

I acknowledge that it is a matter of regret, as the right hon. and learned Gentleman said, that the Country Landowners Association and the National Farmers Union are not yet satisfied that the matter is beyond doubt. It is also regrettable that we cannot make matters black and white, as my hon. Friend the Member for Mid-Staffordshire would have preferred. However, that is not possible and one gets into much more difficulty if one tries than if one concentrates on a concept such as "business purposes" which has done service for the past six years, has given rise to no difficulty and has occasioned no known case of a matter being taken to the courts for interpretation. It is better to build on a known and tried concept than to introduce a new concept in the same section and expect the two to live side by side without giving the courts any idea of what distinction is intended.

Therefore, I fear that I must ask the House to reject the amendment. It is not a case of not having the courage to accept an amendment at this late stage, as the hon. Member for St. Helens, South (Mr. Bermingham) said; it is a matter of considerable thought, as my noble Friend made clear in another place. He went back to the parliamentary draftsman and put the matter to him. He asked whether there were grounds for misgivings. At the end of his speech he said: I say quite seriously to the three noble Lords who have spoken that I have gone into this matter with very great care, absolutely conscientiously, without any kind of preconception that I am always right, or anything like that. I have been advised that I am right, and I still think that I am." — [Official Report, House of Lords, 8 November 1983; Vol. 444, c. 707.] It would be nice if any of us could say that more often.

I say with great respect to the advisers of the important institutions, to whose opinions we pay great attention, that it does no service to their members or to the public who seek access to land for educational or recreational purposes to continue to harp upon fears that have received very authoritative consideration in another place. If I felt that there was any real means by which this legislation could be made clearer, I would be happy to accept an amendment.

For the reasons that I have given, perhaps at undue length, I am satisfied that the amendment would do more harm than good. That alone is the reason why I must advise the House to reject it.

Mr. John Morris

The fact that the Lord Chancellor says three times, "I am right, I am right, I am right" does add much greater weight than had he said it only once. We are duly impressed.

The Solicitor-General is right to criticise the words "commercial activity". I have no special attachment to any form of words. I am not the father of these words; they come from the organisations concerned. I make no apologies on that score because I have tried two other forms of words, with the same object in mind as that of the Solicitor-General and the Lord Chancellor. I have tried with three different forms of words to achieve certainty, but at the end of the day the siren voices from the organisations concerned make me unhappy. It may be that they are wrong and the Solicitor-General is right to tell them, "Go forth and give courage to your members". On the other hand, they may be right. In due course the courts may punish those who rejected the advice of the associations and followed the advice of the Solicitor-General. We know not.

Mindful of the fact that not only did the Lord Chancellor say "I am right" three times but the Solicitor-General said in Committee, "I am right, too", and has said it again tonight, I hope that the statement five times of "I am right" will mean that the object of giving certainty has been achieved. That is our common purpose. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Order for Third Reading read.

Queen's and Prince of Wales's consent having been signified—

10.43 pm
The Solicitor-General

I beg to move, That the Bill be now read the Third time.

During my remarks a few moments ago I think that I adequately explained the purpose of clause 2 of the Bill. However, some of what I said — about the Law Commission—is appropriate to clause 1 rather than clause 2. It shows the care with which the Lord Chancellor has taken into account the fears that have been expressed. It will reassure the House if I say that both on the detailed wording of the Bill — our debate a few moments ago centred on the terms used—and on its broad purpose, which is set out in clause 1, considerable care has been taken by the Law Commission and by my right hon. and learned Friend the Lord Chancellor.

The first objective of the Bill derives from the Law Commission's report on liability for damage or injury to trespassers and related questions of occupiers' liability issued in 1976, of which it implements parts Ito IV. The second is to effect an amendment to the Unfair Contract Terms Act 1977—a piece of legislation which might at first be thought remote from the world of occupiers' liability but which had an unforeseen and undesired consequence in the restriction of access to countryside by landowners.

I have sufficiently, as did the Committee on the Second Reading procedure, followed through the history of this legislation. It is enough to say that the recommendation of the Law Commission, endorsed by the report of the Royal Commission on Civil Liability and Compensation for Personal Injury — the Pearson commission — finds its form in clause 1. I dwelt a little upon that in the previous debate.

We have discussed clause 2, and I shall not repeat my remarks. It is sought through clause 2 to amend part of the Unfair Contract Terms Act and thereby once again to underwrite the opening of the countryside to those seeking access for recreational or educational purposes. Clause 2 does not seek to relieve from liability those occupiers whose granting of access falls within their business premises; nor should it do so. Those who do so from a sense of public obligation, or from kindness—they are many — should be free to exclude liability by taking their circumstances outside the ambit of the 1977 Act's business liability. The Bill achieves that.

Those are two modest but worthwhile objectives, and I urge the House to give the Bill a Third Reading in that spirit.

10.47 pm
Mr. John Morris

I endorse the latter remarks of the Solicitor-General that this is a modest and useful Bill. The House will be grateful for his careful explanation, even at this late hour, because our other proceedings were in Committee and the world at large should hear what the Bill intends. In Committee we canvassed some of our fears about clause 1. Unfortunately, I visualise that there may be some resort to litigation, although the Government are seeking, in accordance with the recommendations of two commissions, to codify the common law and the five different and somewhat divergent ways in which the Law Lords reached their conclusion.

We debated clause 2 a moment ago. It is a matter of regret that the certainty and the helpfulness which the Government hoped would be instilled into this area of ensuring that people have access to the countryside, and that those who were generous enough to afford such access would not run undue risk in so doing, are not yet plain. My fears remain, but the heart of the Government is in the right place on this matter, if on no other, so I advise the House to give this modest but worthwhile Bill a Third Reading.

10.49 pm
Mr. Andrew F. Bennett

I support the Third Reading of the Bill, hoping that it will achieve the objective that everyone has claimed for it, which is to encourage and make easier access to recreational facilities in the countryside. Although the Bill has gone through both Houses without much controversy, I hope that if it is found not to work the Government will bring it back at an early stage to make alterations that will meet the real problems.

I also hope that groups such as the Country Landowners Association and the National Farmers Union will he able to go to their insurers and get an insurance policy which is cheap, or which might even be included in the membership of the two organisations, to cover their members who carry out the provisions of the Bill in the spirit in which we have discussed the measure. If the lawyers do not come up with a solution, perhaps the insurers can draw up a policy to cover the matters about which we have been concerned and, because it is such a small risk, do so in a way and at a cost that will not discourage those who are opening up their land to access.

With those points met, I hope that the legislation will work. Most important, I hope that providing access will not lead to accidents, whoever may or may not be liable for them.

Question put and agreed to.

Bill accordingly read the Third time and passed, without amendment.

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