OCCUPIERS' LIABILITY (Hansard, 28 November 2000)

§ The Minister for the Environment (Mr. Michael Meacher)
I beg to move, That this House agrees with the Lords in the said amendment.

§ Mr. Deputy Speaker
With this it will be convenient to discuss Lords amendment No. 8, Lords amendment No. 9 and amendment (a) thereto, and Lords amendment No. 10.

§ Mr. Meacher
I am conscious that time is moving on fast, and I will be as brief as I can be.
The group of amendments deals with the extent to which occupiers should have liability for harm sustained to other people exercising a right of access to their land. Lords amendments Nos. 8 and 9 remove liability in relation to personal injuries suffered by people climbing over, through, or under a wall, fence or gate, except by the proper use of the gate or stile.
The amendments respond to the concerns that have been expressed by landowners that there would be problems with people hurting themselves when climbing over man-made features that are extremely common in open country, such as dry stone walls. We do not believe that the courts would hold landowners liable in such cases, but we accept that in this increasingly litigious age there might be people who tried to bring cases, however unjustified. It is therefore reasonable that we should reduce the risk of the consequent hassle by excluding from liability particularly common features that are unlikely to cause injury to anybody but the careless.
Lords amendment no. 9 removes liability regarding any river, stream, ditch or pond, whether or not it is a natural feature, and addresses concerns expressed by landowners
875 and conservation interests that occupiers should bear no responsibility in relation to such features, even when they have been made or changed by man. In particular, we accept that it may often be difficult to tell whether a pond was originally man-made or is partly man-made.
Lords amendment no. 10 does two things. It confirms that an occupier retains a minimal liability when he does something that creates a danger on his land with the intention of creating that risk, or is reckless as to whether such a risk is created. The provision requires the courts to have regard to the particular importance of not placing an undue burden—whether financial or otherwise—on the occupier. It also requires the courts to take into account the need to maintain the character of the countryside, including features of historical, traditional or archaeological interest. We want to make it clear that we do not want the countryside littered with forests of signs and miles of fences.
Finally, the courts are required to have regard to any code or guidance issued by the countryside bodies—for example, a warning in the code to walkers to inform themselves about hazards and be on the lookout for them. That should make it even more unlikely that a landowner would be held liable except in the most exceptional circumstances. I hope therefore that the amendments are acceptable.

§ Mr. Paice
May I express our general support for this group of amendments and for the considerable distance that the Minister has travelled from his obsession with the term "natural features", which we debated in Committee? I welcome unreservedly the moves that he has made. However, we have tabled amendment (a) to Lords amendment No. 9, which would add to clause 13 the words a risk resulting from a feature of historic, traditional or archaeological interest. That was discussed widely in the other place, but after reflection on that debate—I do not doubt that the Minister was closely involved in that consideration—it is worth pushing the matter once again. Many features of open country, such as iron age forts, do not fit the Minister's expanded criteria to absolve occupiers from liability. The terminology of amendment (a) would not widen massively the exemption from liability, but would reflect the reality of what is situated in open country. I hope that the Minister will find that constructive and be prepared to accept our amendment.

§ Mr. David Heath
Very briefly, I too welcome the Government's move from their original formulation, which was unnecessarily restrictive. The amendments helpfully expand the Government's intention from what it was in the initial stages of the Bill. I share the concern of the hon. Member for South-East Cambridgeshire (Mr. Paice) that a bias against Celtic and Saxon Britain may be maintained. As we explored in Committee, those features could cause problems, but the hon. Gentleman's formulation, which was discussed in another place, as he says, is an open-ended definition that is also open to an enormous amount of legal challenge. Lords amendment No. 10, which refers to the code of conduct, deals with the matter. However, if it does that insufficiently in future, Parliament will clearly need to return to it.

§ Mr. Meacher
Not for the first time, the hon. Member for Somerton and Frome (Mr. Heath) has expressed a view that is shared by the Government. Amendment (a) to Lords amendment No. 9 would extend the exclusion of liability to any historical, traditional or archaeological feature. I have already referred to the guidance in Lords amendment No. 10, which was mentioned by the hon. Gentleman and will require the courts to have regard to the importance of maintaining such features. That will ensure that the probability of liability arising from those features is very low indeed. However, there is no reason why we should make a special case for the exclusion of all liability from such features, especially if they have been buried, either partly or completely, when they would be virtually indistinguishable from any other access land.
There has been much complaint about the need to identify natural features. However, a rigid rule automatically excluding all historical or traditional features would be impossible to apply. I give great credit to Conservative Front Benchers, Liberal Democrat Members and Plaid Cymru, as they have influenced us. Under the pressure, we have moved a considerable distance from our original argument. Despite all that we have done to reduce liability to a bare minimum, and given the lack of evidence that there is a problem, the issue of liability will remain a concern unless the Bill eliminates liability totally. For the reasons that I have already given, we do not believe that that can ever be right. We have gone as far as we reasonably can. To remove all liability of occupiers of access land to those responsibly exercising the right of access, including children, would be a step too far and could not be justified.