§ 4.32 p.m.
§ Order of the Day for the House to be put into Committee read.
§ Moved, That the House do now resolve itself into Committee.—(The Earl of Radnor.)
§ On Question, Motion agreed to.
247§ House in Committee accordingly:
§ [The EARL OF ONSLOW in the Chair.]
§ Clause 1:
§ Persons not to be prevented from walking on land to which this Act applies.
§ 1.—(1) Subject to the provisions of this Act, no owner or occupier of, or person having an interest in, land to which this Act applies shall be entitled to exclude any person from entering or being on the land, on any day between one hour before sunrise and one hour after sunset, for the purpose of air and pedestrian exercise so long as he—
- (a) observes any limitations and conditions specified in relation to the land in an order made by the Minister of Agriculture and Fisheries (in this Act referred to as "the Minister") under Section three of this Act;
- (b) does not contravene any direction given in relation thereto by an order made by the Minister under Section five of this Act; and
- (c) does not contravene in relation thereto any of the provisions specified in Section six of this Act:
§ Provided that nothing in this subsection shall interfere with, prejudice, or affect the operation with regard to any land of any statutory scheme, order, by-law, or regulation.
§
THE EARL OF RADNOR moved, in subsection (1), after paragraph (c), to insert:
Provided that this subsection shall not have effect in the case of land which is excepted land within the meaning of Section two of this Act.
§ The noble Earl said: The first Amendment standing in my name and that of the noble Lord, Lord Addison, is one of a series of Amendments. It is really a machinery Amendment, in that it alters the Bill to the extent that excepted land is automatically excepted from the operation of the Bill instead of, as originally drafted, needing to be specifically mentioned in any order made by the Minister under Clause 3. The difficulty really arises in this way: that if you get an area of land which is made accessible to the public, under the Bill as drawn at present that land has to be mapped by the Minister, and he has to show on the map every little bit of land which may prove to be excepted land within the definition of Clause 2. That means that he has to show every little croft, cottage, garden and so on. That, of course, as your Lordships will realise, if he were dealing with any large area, would be almost impossible. That is the machinery part of the Bill which makes it almost essential 248 that an Amendment of this nature should be inserted. This Amendment carries with it, of course, a great many consequential Amendments later on. I do not think that it really makes any difference to the operation of the Bill except that excepted land, if the Amendment is agreed to, will be automatic rather than specific. I therefore beg to move that this Amendment be agreed to.
§
Amendment moved—
Page 2, line 2, at end insert ("Provided that this subsection shall not have effect in the case of land which is excepted land within the meaning of Section two of this Act.")—(The Earl of Radnor.)
§ On Question, Amendment agreed to.
§ THE EARL OF RADNOR moved, in subsection (1), to leave out the proviso. The noble Earl said: This proviso was put into the Bill because there was a similar proviso in the Law of Property Act, 1925, Section 193, which dealt with rights of access to commons. Commons, as your Lordships are well aware, are frequently the subject of regulations under Statute, but private property hardly ever is, and it therefore seems unnecessary that this proviso should be in the Bill.
§
Amendment moved—
Page 2, line 3, leave out lines 3 to 6.—(The Earl of Radnor.)
§ On Question, Amendment agreed to.
§
Amendment moved—
Page 2, line 10, leave out ("which is not excepted land within the meaning of subsection (2) thereof").—(The Earl of Radnor.)
§ On Question, Amendment agreed to.
§
THE EARL OF RADNOR moved to insert the following new subsection after subsection (3):
(4) An order made under Section three of this Act may specify or describe places for entry on land to which this Act applies, and may provide that subsection (1) of this sons section shall not have effect as respects person entering thereon elsewhere than at those places.
§ The noble Earl said: This Amendment is perhaps slightly more important. It is designed to make quite clear that the public are not allowed to enter on land which is made accessible under the Bill at places where such land is fenced. They are, of course, not allowed actually to do 249 damage by going through fences. The Amendment has the further point that it also prevents, by implication, the owner of accessible land from making it inaccessible by fencing all round it, if he so wishes. As your Lordships see, all order under Section 3 may specify or describe the places by which the public can get access to such land. I think that that gets over the difficulty of the public trying to get on to the land by routes which they should not use, and it also heads off the recalcitrant landowner who wishes to keep people out by fencing all round. I beg to move.
§
Amendment moved—
Page 2, line 23, at end insert the said new subsection.—(The Earl of Radnor.)
§ LORD CRANWORTHI am not quite clear on this Amendment. Would the effect of it be that anybody getting through the fence on to access land is not subject to the same penalty as the man who goes through the gate? If that is the case there would be quite a number of holes in the fence.
THE EARL OF RADNORThis is possibly a rather abstruse point. I am not quite certain whether when the man is getting through the fence which fences the land he is actually on the access land or not. If he is, he is committing an offence undoubtedly and he will be penalised under Clause 7.
§ LORD CRANWORTHThen may I take it that that does not mean what at first sight it seems to mean: that if he gets through the fence he is merely a trespasser and not a person who has a right to be on the land? If that were the case, as a trespasser he is not liable to the penalties mentioned in Clause 7, but merely to the penalties that the ordinary trespasser incurs, which usually amount to nothing.
THE EARL OF RADNORI think my noble friend may take it as absolutely certain that once he gets on the land which is made accessible, he is liable to the pains and penalties under Clauses 6 and 7.
§ LORD CRANWORTHThank you.
§ On Question, Amendment agreed to.
§ Clause 1, as amended, agreed to.
250§ Clause 2:
§ Kinds of land to which this Act may be applied, and excepted land.
§ 2.—(1) The kinds of land as to which an order applying this Act thereto may be made shall be land which in the opinion of the Minister is mountain, moor, heath, or down.
§
(2) The following land shall be excepted land, that is to say, land which in the opinion of the Minister is—
(b) agricultural land (that is to say, land used as arable, meadow or pasture ground, or for the purpose of poultry farming, market gardens, nursery grounds, orchard or allotments, including allotment gardens within the meaning of the Allotments Act, 1922) other than sheep walks or cliff;
(h) land comprised in an ancient monument as defined by Section fifteen of the Ancient Monuments Act, 1931, for the purposes of Part II (Guardianship of ancient monuments) of the Ancient Monuments Consolidation and Amendment Act, 1913;
§ LORD ADDISON moved, in subsection (1), to leave out "or" in order, after "down," to insert "or cliff." The noble Lord said: On behalf of my noble friend, the point was raised on the Second Reading of the Bill that it would be desirable that the land to which the Bill would apply should include cliff land and such like places which are commonly walked on. This Amendment is proposed in order to include such land.
§
Amendment moved—
Page 2, line 27, leave out ("or").—(Lord Addison.)
§ On Question, Amendment agreed to.
§ LORD ADDISONThis is consequential.
§
Amendment moved—
Page 2, line 27, at end, insert ("or cliff").—(Lord Addison.)
§ On Question, Amendment agreed to.
THE EARL OF RADNORThis Amendment is consequential on the first Amendment relating to excepted land.
§
Amendment moved—
Page 2, line 29, leave out ("land which in the opinion of the Minister is").—(The Earl of Radnor.)
§ On Question, Amendment agreed to.
§ Amendments moved—
§ Page 2, line 36, leave out ("or") and insert ("and land")
251§ Page 2, line 38, leave out ("as to") and insert ("that access by the public thereto would").—(The Earl of Radnor.)
§ On Question, Amendments agreed to.
§
LORD ADDISON moved, in subsection (2) (b), to leave out "other than sheep walks or cliff" and insert" so however that a tract of mountain, moor, heath, down or cliff, shall not be treated as pasture ground for the purposes of this paragraph by reason only of the fact that sheep or cattle graze thereon." The noble Lord said: This Amendment is to take out the expression "sheep walk." If noble Lords will refer to the top of page 3, they will see the words "other than sheep walks or cliff." It was felt difficult to define what a sheep walk was. There is, for instance, much land round about cliff tops, where sheep graze quite properly, but it would be, I hope, excepted land and classified as pasture land. It is in order to make the understanding with regard to them as clear as possible that I propose this Amendment:
so however that a tract of mountain, moor, heath, down or cliff, shall not be treated as pasture ground for the purposes of this paragraph by reason only of the fact that sheep or cattle graze thereon.
We are advised by our legal advisers that this makes it as clear as may be.
§
Amendment moved—
Page 3, line 4, leave out ("other than sheep walks or cliff") and insert the said new words.—(Lord Addison.)
§ LORD CRANWORTHMay I ask whether the noble Lord is as satisfied as his legal advisers that this makes it quite clear? Furthermore, is it the number of sheep and cattle which are the point in question, or other facts such as fencing?
§ LORD ADDISONIf it is fenced and becomes excepted land then it would be excepted from the order. The point here is that sheep do in fact graze on cliff land very commonly. It is not enclosed, and would be land dealt with in the order, but is not ordinary pasture land which would be enclosed and excepted from the order altogether. It is to provide as far as possible by words of fairly reasonable interpretation that you should not be able to classify as pasture a piece of cliff land where sheep ordinarily wander about and are allowed to graze thereon. Far be it for me to say that the Courts will be satisfied with the words, but personally 252 I was satisfied, and they seem to be as good as the lawyers can invent.
§ On Question, Amendment agreed to.
§ Amendments moved—
§ Page 3, line 32, leave out the second ("or") and insert ("and land").
§ Page 3, line 34, leave out ("as to") and insert ("that access by the public thereto would").—(The Earl of Radnor.)
§ On Question, Amendments agreed to.
§ THE EARL OF RADNOR moved to leave out paragraph (h). The noble Earl said: On the Second Reading I think it was Lord Bledisloe who mentioned the question of ancient monuments. This Amendment to omit paragraph (h), which deals with ancient monuments, is put down not so much to deal with his point as to deal with certain objections which arise over this particular paragraph. This paragraph really is very much legislation by reference to which I think a great many of your Lordships have a rather strong objection. In actual fact, to ascertain the land comprised in an ancient monument it would be necessary to refer to the opinions of Commissioners of Works or, in some cases, of local authorities, and it might be rather difficult to find out what land was comprised in any ancient monument concerned. In any case ancient monuments are dealt with by the Acts of 1913 and 1931, and I think that ancient monuments should be left to the operation of their own Acts, rather than be brought within the scope of this Bill.
§
Amendment moved—
Page 3, line 37, leave out paragraph (h).—(The Earl of Radnor.)
§ On Question, Amendment agreed to.
§ Clause 2, as amended, agreed to.
§ Clause 3:
§ Provisions as to making, variation and revocation of orders as to application of this Act.
§ 3.—(1) An order applying this Act to land may be made on the application—
§ Provided that, to an application made by the owner of land in which any other person has an interest not capable of being bound or over-reached by a disposition made by the owner thereof, the consent of that person shall be requisite.
253§ (5) When submitting the application to the Minister, the applicant shall transmit to him any objection made to the applicant in writing before the end of the period specified in the notice, other than an objection which has been withdrawn, and the Minister shall consider any such objections, and may thereafter, and after holding such enquiries (if any) as he thinks fit, make an order in accordance with the application with or without modification:
§ Provided that…
§ (8) In relation to a revoking order, or a varying order not providing for the application of this Act to land, subsections (1), (3), (4) and (5) of this section (except, in the case of a revoking order, subsection (3) and paragraph (a) of subsection (4)) shall have effect with the substitution, for references to the application of this Act to land, of references to the revocation or variation and, for references to the particulars required by subsection (3), of references to particulars of any variation applied for:
§ Provided that—
§ (b) if the Minister is of opinion that all or any of the land to which by virtue of an order this Act for the time being applies has ceased to be land of any of the kinds mentioned in subsection (1) of Section two of this Act or has become, or would but for the order have become, excepted land, he shall revoke the order, or shall make a varying order directing that this Act shall cease to apply to that part of the land as to which he is of that opinion, as the case may require, and the said subsections shall not have effect in relation to a revoking or varying order to be made by virtue of this paragraph.
§ THE EARL OF RADNOR moved, in the proviso to subsection (1), after "land," to insert "of which another person is the occupier or." The noble Earl said: This Amendment deals with the definition of those who are the owners, occupiers or persons having an interest in the land. As the Bill is at present the wording is somewhat loose, and the various forms in which those interested in the land are dealt with are to be found throughout the Bill, and a number of Amendments are proposed. It is proposed to keep all more or less on the same lines, so that those to whom it is intended to refer will be referred to as the owner, occupier or any other person who is interested in the land. I think that if that is the wording used throughout the Bill we shall know where we are.
§
Amendment moved—
Page 4, line 34, after ("land") insert of which another person is the occupier or").—(The Earl of Radnor.)
§ On Question, Amendment agreed to.
254§ Amendments moved—
§ Page 4, line 36, after ("consent") insert ("of the occupier or")
§ Page 4, line 36, after ("person") insert ("as the case may be").
§ Page 5, line 3, at end, insert ("and of any provisions proposed to be included in the order by virtue of subsection (4) of Section one of this Act").—(The Earl of Radnor.)
§ On Question, Amendments agreed to.
§ Amendments moved—
§ Page 5, line 9, after ("where") insert ("the application and")
§ Page 5, line 11, after ("where") insert ("copies of")
§ Page 5, line 12, leave out ("inspected and copies thereof").—(The Earl of Radnor.)
§ On Question, Amendments agreed to.
§ THE EARL OF RADNOR moved, in subsection (5), immediately preceding the proviso, to insert "if it appears to him to be expedient so to do having regard to all the circumstances, including the extent to which access by the public to the land to which the application relates has been allowed in the past." The noble Earl said: This Amendment is brought forward to meet a point raised in another place regarding land to which the public have had access in the past, whether they had a right of access or not—at any rate have been allowed to have access. It was felt that in making an order for access to such land regard should be had to the user of the land in the past by the public. There are, as one knows, a number of places in this country where the public have had, by permission of the owner or without his active interference, access for (in some cases) a great number of years, and fears were expressed that in making orders under this Bill such access as had already been enjoyed might be curtailed. So this Amendment has been devised.
§
If your Lordships will look at it you will see that it places the responsibility of decision upon the Minister who makes the order, and the Amendment begins "if it appears to him to be expedient so to do," and he is to have
regard to all the circumstances, including the extent to which access by the public to the land to which the application relates has been allowed in the past.
I think there is, as a matter of fact, in the Bill, without this Amendment, sufficient
255
to ensure that, generally speaking, the Minister ought to have regard to what has happened in the past before making an order, but I think equally it is desirable that it should be so stated in the Bill. It is only right to draw your Lordships attention to the fact that the overriding consideration is still there in Clause 3, subsection (5) (c), where the Minister cannot make an order if, as a result, there is likely to be a material loss or damage to the owner, etc. That overrides any consideration of this sort, and I think in view of the objections made in another place, and in justice to those who wish to make use of the land, this is an Amendment which should be agreed to.
§
Amendment moved—
Page 5, line 34, at end insert ("if it appears to him to be expedient so to do having regard to all the circumstances, including the extent to which access by the public to the land to which the application relates has been allowed in the past").—(The Earl of Radnor.)
§ LORD CRANWORTHI find this Amendment a little difficult to understand. Take the case of an ordinary piece of land. The Ministry investigates the circumstances and finds that this land has been roamed over freely in the past. Therefore it is made "access land" under this Bill, and penalties will be put on for various offences or derelictions which would not have fallen upon people who by custom had been used to going on this land. I quite agree that it would not be fair to them to have any different responsibility placed upon them than they had before. This land would remain as it was. But what then happens is that the custom which has allowed them to roam is done away with by the owner. Then I presume the Minister would, after further consideration, make an order.
THE EARL OF RADNORI think the position is that in making an order the Minister has to have regard to those considerations, but of course he need not make an order if those considerations are such as to make it undesirable. But should an owner in the instance which my noble friend has suggested close the access to the land which people had in the past, then it is open to the local authority or a representative body to apply for an order, and when the Minister considers the making of that order he has 256 to take into consideration the access that there has been in the past. I cannot honestly say how much further it will go, but I do not think that such cases are likely to arise very frequently.
§ On Question, Amendment agreed to.
§ THE EARL OF RADNOR moved, in subsection (8), to leave out proviso (b). The noble Earl said: This Amendment is really consequential on that which dealt with excepted land. The only respect in which it is not consequential is that if a whole area is dealt with by an order, in the event of its being excepted land it has to be dealt with by an amending order, but if a portion of it becomes excepted land through the operation of time—building or something of that sort—then it automatically becomes excepted.
§
Amendment moved—
Page 7, line 21, leave out from ("order") to the end of line 35.—(The Earl of Radnor.)
§ On Question, Amendment agreed to.
§ VISCOUNT BERTIE OF THAMEOn the Question that the clause as amended stand part of the Bill there are two points I should like to raise for the consideration of my noble friend. By the proviso in subsection (1)
to an application made by the owner of land in which any other person has an interest not capable of being bound or over-reached by a disposition made by the owner thereof, the consent of that person shall be requisite.But in the case where a council of any county or any organisation deemed by the Minister to be sufficiently representative of the persons likely to be benefited by the application of the measure, there is no such proviso. It is just as important whether the owner of the land is the applicant, or the council or the organisation, that the remainder men should have due notice and their consent be obtained. Of course it may be said that they do not know who the remainder men are, but I should have thought it would have been possible to make the owner, on whom a copy of the application has to be served, pass on to the remainder men the notice which he receives. I wonder whether the noble Earl could get his advisers to draft something to cover that point. There is another small point on proviso (a) of subsection (5). In the case of an inquiry held at which the applicant and the objector and any other person deemed by 257 the person holding the inquiry to be sufficiently interested any of those persons is entitled to appear and to be heard. I think it is usual to make provision that he may be represented by an agent.
THE EARL OF RADNORIn the case of the proviso to subsection (1), that deals with an application for an order by an owner, and of course he knows who are the people who have other interests in his land. In the case of a local authority, or an organisation which is deemed to be representative, he has no means of knowing, and therefore he himself cannot of course deal with the remainder men. I think there is a further argument, and that is that in the event of an application by an organisation, and not by the owner, presumably—indeed quite likely—the owner will object. I think the proviso dealing with the owner is intended to prevent an owner from going behind the back of the remainder men without consulting them; but when it is a public body that is concerned they have to take steps in the form of publication which is easily available to the remainder men. But I will on that point consider with my advisers whether it is possible to place an obligation upon the owner in those circumstances to communicate with those other people who are interested. I cannot say off-hand whether it is possible or not. With regard to the other point, concerning the agent, I will also look into that, and if it is possible I will move an Amendment on the point.
May I mention another matter? On the Second Reading I said to your Lordships that I proposed to put down an Amendment allowing access by deed to excepted land. The process I envisaged was that the persons who wished excepted land to be made accessible to the public should apply to the Minister for an order dealing with access. There is no such Amendment on the Paper. The reason is that it was represented to me by the Government that such an Amendment would be rather a big departure from the existing law of trespass, and that any such alteration in the law should really be made by a Government Bill, and therefore it was undesirable to have it in a Private Bill, and they would be compelled to oppose it. In those circumstances I felt it most desirable not to put down such an Amendment.
§ On Question, Clause 3, as amended, agreed to.
258§ Clause 4 [Maps to be attached to orders and deposited with county authorities]:
THE EARL OF RADNORI have five drafting Amendments to this clause to conform with the terms of Section 280 of the Local Government Act, 1933, under which the obligations imposed by this clause should formally be imposed on the clerk of the local authorities, and not on the local authorities themselves. I beg to move.
§ Amendments moved—
§ Page 8, line 4o, leave out ("them") and insert ("the clerk")
§ Page 8, line 41, leave out ("him") and insert ("the Minister")
§ Page 8, line 41, leave out ("council") and insert ("clerk")
§ Page 9, line 1, leave out ("them") and insert ("him")
§ Page 9, line 4, leave out ("them") and insert ("him").—(The Earl of Radnor.)
§ On Question, Amendments agreed to.
§ Clause 4, as amended, agreed to.
§ Clause 5 agreed to.
§ Clause 6:
§ General conditions.
§
6. No person shall without lawful authority (proof of the possession whereof shall lie upon him), in or upon any land to which this Act applies—
(h) wilfully injure, remove, or destroy any plant, shrub, tree, or root or any part thereof;
(o) hinder or obstruct the owner or occupier or any sporting or other tenant of the land or any person employed or authorised by the owner, occupier or tenant in the exercise of any right or power or the performance of any function vested in him or devolving upon him under or in pursuance of this Act or otherwise.
§ VISCOUNT BERTIE OF THAME moved, at the end of paragraph (h), to insert "or any notice board." The noble Viscount said: It is quite likely that notice boards will be erected under Clause 2. They will be definitely erected under Clause 6. I know of cases where the public have damaged and taken away notice boards saying that property is private, which have been legitimately erected by the owners. For that reason, this paragraph should go in to protect owners who put up notices saying that certain parts of the land are exempted. I beg to move.
259
§
Amendment moved—
Page 10, line 7, at end insert ("or any notice board").—(Viscount Bertie of Thame.)
THE EARL OF RADNORMy noble friend Lord Bertie seems to want to class notice boards with plants, shrubs, roots, and so on. I cannot feel in any case that this paragraph is the right place for such an Amendment because a notice board is not what you might call a natural growth on the land. I would rather, if it is necessary to put it in the Bill, it were put somewhere else than in this clause. As a matter of fact, the point is covered fairly completely by the preceding paragraph (g) which reads, "wilfully damage the land or anything thereon or therein." That is definitely designed to cover erections put up by man on the land for the purpose of the land in various forms. I hope the noble Viscount will accept that as an answer and withdraw his Amendment.
§ VISCOUNT BERTIE OF THAMEI should not have attempted to put this in anywhere were it not for paragraph (g) which says, "wilfully damage the land or anything thereon or therein;" and the next paragraph goes on to say "wilfully injure, remove, or destroy any plant, shrub, tree or root or any part thereof." If you include shrubs, you ought to include such a thing as a notice board, or take the shrubs out. I am not at all particular where my Amendment goes in.
THE EARL OF RADNORI think the noble Viscount is wrong really, because there is a natural propensity amongst those who go on the land to pick flowers and plants which it is most desirable to stop. If we are going to mention notice boards—and I am quite prepared to consider it on Report—there are a great many other things which might have to be mentioned. You could expand this particular clause of the Bill almost without limit.
§ VISCOUNT BERTIE OF THAMEI do not know what other things my noble friend has in mind, but if he could tell me it might help to clear the matter up.
THE EARL OF RADNORLitter boxes and so on. There are a great many things that are erected on the land by human agency which are not mentioned, and it is rather difficult to make a list of them.
§ VISCOUNT BERTIE OF THAMECannot people be prosecuted for damaging these notice boards?
§ VISCOUNT BERTIE OF THAMEIf that is so, that is good enough.
§ Amendment, by leave, withdrawn.
§ THE EARL OF RADNOR moved, in paragraph (o), to leave out all words after "hinder or obstruct the owner or occupier" and insert "of the land or any person having an interest therein, or any person acting under the authority of the owner, occupier or person interested, in the exercise of any right or power vested in him by virtue of this Act or otherwise." The noble Earl said: This is really a drafting Amendment. The wording here again is rather narrow, and one wants to include all the people interested in the land in conformity with those mentioned in a previous Amendment. It eliminates any mention of the sporting tenant, but that omission is remedied in a later Amendment. I beg to move.
§
Amendment moved—
Page 10, line 24, leave out from ("occupier") to the end of line 31, and insert the said new words.—(The Earl of Radnor.)
§ On Question, Amendment agreed to.
§ Clause 6, as amended, agreed to.
§ Clause 7:
§ Offences and enforcement.
§ 7.—(1) Any person who in or upon any land to which this Act applies contravenes or fails to observe any of the provisions specified in the last preceding section or any limitation or condition specified in relation thereto in an order made under Section three of this Act, or any direction given in relation thereto by an order made under Section five of this Act, shall be guilty of an offence under this section:
§ Provided that…
§ (3) Any person guilty of an offence under this section shall, without prejudice to any other liability, be liable, on summary conviction, to a fine not exceeding, in the case of a contravention of any of the provisions specified in paragraph (b) of Section six of this Act, five pounds for the first offence and ten pounds for any subsequent offence, and, in the case of any other offence, two pounds, and, in the case of a continuing offence, to a further fine not exceeding ten shillings for each day during which the offence continues, and where the offence involves or causes any injury to, or removal or destruction of, any property (whether animate or inanimate) the offender shall in addition b[...] liable to pay damages or make compensation 261 to the owner of the property, and such damages or compensation shall be recoverable in the court before which he is convicted, either along with the fine or as a civil debt if the owner is willing to limit the amount of his claim for damages or compensation to a sum not exceeding ten pounds, but if he is not so willing then the damages or compensation shall be recoverable in any court of competent jurisdiction.
§ (4) Any offence under this section may be prosecuted by the owner, or occupier, or any sporting or other tenant of the land in or upon which the offence was committed or by any person employed or authorised by him or by any person who is the owner of any property the injury, removal or destruction of which is involved in or caused by the offence.
§ (5) Any person guilty of an offence under this section and refusing or neglecting to desist from the offence after having been requested so to do may be removed or excluded, without use of unnecessary violence, from any land to which this Act for the time being applies, by the owner, or occupier, or any sporting or other tenant thereof or any person employed or authorised by him (proof of which employment or authority shall rest upon the person so employed or authorised).
§
THE EARL OF RADNOR moved, in subsection (1), after "Provided that" to insert:
(a) in relation to a contravention of or failure to observe a limitation or condition specified in an order made under Section three of this Act, this subsection shall have effect only if it is expressly provided by an order so made that this subsection shall' have effect in relation thereto, and the Minister shall not make an order containing such provision unless he is satisfied that it is necessary so to do in order to prevent the continuance of contraventions of or failure to observe the condition or limitation or in the public interest.
§ The noble Earl said: This is perhaps the most important Amendment on the Paper. Clause 7 is the penal clause of the Bill. Under it an individual who is guilty of an offence under Clause 6 is liable to a fine, and if he is guilty of contravening any of the limitations or conditions which may be specified in an order made under Clause 3 he is also guilty of an offence and equally liable to a penalty. The limitations and conditions which may be imposed in an order made under Clause 3 are defined to a great extent in Clause 1, subsection (3), which virtually points out that the Minister, in making an order, can limit to a certain extent the times at which people may go on the land. The limitations which one has in mind may relate to the lambing season or the nesting season, or to some other similar season. [...]your Lordships will see from the pro- 262 viso in subsection (1) at the top of page 11, if anybody intentionally trespasses at such times he is guilty of an offence and liable to a penalty of £2 as a maximum for such simple trespass. It seems to me perfectly reasonable, when an order is made by the Minister that people should not go on the land at certain times, that there should be some penal provision—some sanction—to ensure that they do not go on the land at such times. This particular provision has aroused a very considerable opposition amongst the organised ramblers. They claim that it is a material alteration of the law of trespass that a man who commits a simple trespass—I must emphasize the word "intentionally"—is liable to a fine of £2 or such lesser sum as may be imposed. They say that is wrong, and as the result of that they are quite definitely opposed to the Bill as a whole because of this small point.
§ The Amendment does not affect any sanctions under Clause 6, which is the one we have just dealt with, and it does not affect any offences under Clause 5—that is the fire clause. It only deals with the question of simple trespass without damage. After due consideration, the promoters of the Bill came to the conclusion that a concession might reasonably be made to the organised ramblers on this really very small point in the hope and belief that if this was conceded, their co-operation in the working of the Bill when it becomes law will be obtained. The effect of it will be really that when access land is closed to the public for any particular reason, then during such time simple trespass will not be an offence under the Bill, but the individual who does so trespass will be liable to be excluded under the law of trespass—that is to say, the owner will get back the right to exclude the simple trespasser in these circumstances. The owner in fact will be no worse off than he would be if this Bill never became law. The rambler will be the better off in that there will be certain times when the land on which he is going will be available to him without his trespassing.
§ I think the objection arises mostly in regard to land on which certain things have been happening. At the present time a great many ramblers are quite deliberately and avowedly—as I have heard, and I think the noble Lord on the Front Bench has heard—trespassing over 263 land. They feel they do no harm in so doing, and I think in very many cases they do no harm. Your Lordships will see that under the Amendment the Minister will be enabled to make an order imposing the sanction if it should prove to be necessary in the light of experience, and if by agreeing to this Amendment the good will of the organised ramblers can be obtained, I feel fairly certain that we shall get their co-operation in operating the Bill when it becomes law. Their co-operation can be, and I have no doubt will be, extremely helpful to the landowners who will be concerned with the operation of this Bill. I beg to move.
§
Amendment moved—
Page 11, line 1, at end insert the said paragraph.—(The Earl of Radnor.)
§ LORD ADDISONI should like to intervene for a moment to say that I am quite sure a large number of people will be sincerely grateful to the noble Earl for what I may call this ingenious compromise. It is a fact that as the Bill stood the law, including the sanctions, would be applicable to excepted land where none of the offences under Clause 6 have been committed, and merely through the fact of walking there. In that respect it was claimed, and I think fairly claimed, that it was thereby indirectly a drastic extension of the law affecting trespass. If this Amendment is agreed to it will, I am glad to feel, exempt nobody from the penalties which would be incurred by committing any of the offences set out in the previous clause, and for that reason I am glad the noble Viscount, Lord Bertie of Thame, does not now seek to exempt pulling up of roots and so forth. I am sure there is not one of us who would like to think that any consideration was being given to people who do dreadful things of that kind. This does not affect any of them, but it does mean that the ordinary law of trespass will continue to apply in the absence of any of the offences not being committed that are set out in the previous clause. This exempted land will be in the same position in respect of trespass as other land. I think myself that many will feel extremely grateful to the noble Earl for promoting this compromise, and I sincerely hope your Lordships will accept it. It leaves the land in no worse position in any case than it is in now, and it does remove the discrimination 264 between mere walking about on land which is excepted land and walking about on other land, in both of which cases you might be trespassing.
VISCOUNT ESHERSpeaking on behalf of the deliberate trespasser, who I am willing to support as far as I can, I am very greateful to the noble Earl for what he has done, but I would like to ask him how the deliberate trespasser is to know whether the sanction has been imposed.
§ LORD CRANWORTHI should like to say a word in respect of this Amendment. As far as this Bill is an agreed measure—and that is so, I think, to some considerable extent—it is agreed in a spirit of compromise. The ramblers and the hikers get certain privileges, not so many as they would wish, and in return they accept certain responsibilities. Hence we get a spirit of compromise. Now without this Amendment they would go upon this land for a certain period of time and would accept responsibilities and get none of the privileges. That, to my mind, would be quite unfair, and I am glad to see that my noble friend approves of the Amendment.
LORD SALTOUNI have been asked to express to the noble Lord in charge of the Bill the doubts that certain persons have as to the effect of this Amendment in the precise position in which it is to be inserted. I do not wish to pose as an expert on this matter to your Lordships,' but it has been represented to me that this Amendment affects the operation of the closing order, and that this is not a good place in which to put it because this is a provision which is dealing mainly with offences and enforcement. Those who have represented this matter to me would have preferred this Amendment either as a subsection at the end of the clause or as a separate clause altogether. I should be very grateful if the noble Earl would consider whether an Amendment on those lines could be inserted in the Report stage.
So far as the Amendment itself is concerned there is a point about which I am myself not quite clear. Perhaps I have misunderstood the Amendment. [...] words I would refer to are: 265
and the Minister shall not make an order containing such provision unless he is satisfied that it is necessary so to do in order to prevent the continuance of contraventions.That seems to me to be a very elaborate procedure for locking the stable door after the steed has been stolen. It may be said that anyone who suffers damage has his Common Law remedy, but this Bill is designed to bring a great many people on to the land in ways which are not open to them at present, and I hope it will be successful. If this Bill is necessary to extend people's rights of going on to land, then I see no reason why the ordinary power to obtain damages at Common Law should not be increased. If the Minister makes an "order containing such provision" then the rambling societies will have to see to it that their members are aware of the order.But there are so many things that may happen. I suggest to your Lordships that the lambing season is probably the most important matter to be considered. If by reason of disturbance the lambing of a flock is seriously impaired what possible compensation can be given to the man who owns that flock for the loss of his livelihood? The rambling societies, as the noble Earl knows well, are not in the least liable for the actions of their members, and experience has shown that the actual culprits can very seldom pay suitable damages for such loss. I am a little afraid, if I am right in my interpretation of this clause, that this may lead to very bad feeling on the part of occupiers if they should suffer such a loss as I have indicated. I do not wish to press the point. I am sure the noble Earl has it in mind, but if, as I understand the Amendment, the Minister can only make on order after actual damage has been done then I think that that is a rather serious position. I think it should be in the discretion of the Minister himself.
§ THE LORD CHANCELLOR (LORD MAUGHAM)As this is a question of the construction of the Amendment upon the Paper I think perhaps I may usefully say a word. I am not sure that I quite follow the noble Lord's objection. Whether the Amendment is worded in the best way or not is another thing, but the substance of it is that the Minister is not to make an order under which the penalty [...] be claimed under this clause unless [...] satisfied that it is necessary so to 266 do, in order to prevent the continuance of contraventions, or failure to observe the condition or limitation or in the public interest. I do not conceive, and I do not think it can be right to say, that the landowner has got to wait until injurious things have been done before there can be inserted in the order such a provision. As I understand it, it will be open to the landowner or somebody else claiming the order to explain that there is a risk that at any particular time a somewhat serious contravention might take place which would greatly injure him, not as the noble Earl, Lord Radnor, pointed out, a contravention mentioned in Clause 6 but the other contraventions which are referred to in Clause 3. The only thing which might perhaps be considered on Report stage is whether it is wise to put in the words "in order to prevent the continuance of contraventions," or whether it might not be wise to put in "to prevent contraventions or the continuance of contraventions," or something to show that the thing has not got to begin before the order is made by the Minister. Subject to that, I venture to think the danger which has been anticipated as to the result of the Amendment as drawn is really not one which need greatly occupy the attention of the noble Lord.
THE EARL OF RADNORPerhaps I might be allowed to say, as regards the place of the Amendment in the Bill, that after all this clause is the one which deals with offences and this is a proviso dealing with the same question. I will, however, look into the matter and see whether it can be more suitably done elsewhere, although I do not think the position in the Bill would make a very great difference to the actual result. With regard to the point made by the noble and learned Lord the Lord Chancellor, I would like to say that as I read it—I may be wrong—the Minister shall not make an order unless he is satisfied that it is necessary to do so in order to prevent the continuance of contraventions or failure to observe the condition or limitation; that is to say, he makes an order if he is satisfied that it is necessary to make an order to ensure observance. That may be 267 right or wrong—I am subject to correction by the noble and learned Lord—but it seems to me to cover any possible contingency, particularly in the case of the owner who says: "Well, if you don't impose a sanction, I shall suffer loss," and that is a substantial argument of which the Minister must take account. However, I will look into the matter in conjunction with those advising me and see if anything is necessary to be done on Report stage.
§ On Question, Amendment agreed to.
§
Amendment moved—
Page 11 line 22, leave out from ("occupier") to ("has") in line 26, and insert ("of land to which this Act applies or any person having an interest therein, or any person acting under the authority of the owner, occupier or person interested").—(The Earl of Radnor.)
§ On Question, Amendment agreed to.
§
Amendment moved—
Page 11, line 28, after ("may") insert ("(on production, if he is acting under authority and is so requested, of evidence of his authority)").—(The Earl of Radnor.)
§ On Question, Amendment agreed to.
§
Amendment moved—
Page 11, line 31, leave out ("and") and insert ("or").—(The Earl of Radnor.)
§ On Question, Amendment agreed to.
§ THE EARL OF RADNOR moved, in subsection (3), to leave out "and, in the case of a continuing offence, to a further fine not exceeding ten shillings for each day during which the offence continues." The noble Earl said: This Amendment relates to a continuing offence. Your Lordships will see that provision is made for a fine not exceeding 10s. each day. As the Bill is drawn it is hardly possible that there can be a continuing offence. The offence will cease at the latest an hour after sunset and another offence would have to be committed an hour before sunrise. It cannot be a continuing offence. If this Amendment is agreed to the offender will be liable to a maximum fine of £2 to-day and another £2 268 to-morrow, instead of 10s. for each subsequent day.
§
Amendment moved—
Page 11, line 40, leave out from ("pounds") to ("and") in line 42.—(The Earl of Radnor.)
§ On Question, Amendment agreed to.
§
THE EARL OF RADNOR moved, in subsection (3), to leave out all words after "continues," and insert the following new subsection:
(4) If any person, by any act or omission which constitutes an offence under This section, does or causes to be done any damage to property, he shall, on conviction of the offence, be liable upon the application of the person who sustains the damage to be ordered to pay to him as compensation therefor such sum not exceeding ten pounds as the court before which he is convicted may consider reasonable:
Provided that this subsection shall not prevent the taking of any other legal proceedings in respect of that damage, so however that a person shall, not be proceeded against twice in respect of the same claim.
§ The noble Earl said: This really is a drafting Amendment. The subsection which I propose reproduces the sense of the words I propose to leave out in a form for which there is a precedent. The actual precedent is taken from the Protection of Animals Act, 1911. I think it makes the point clearer than in the Bill as drafted.
§
Amendment moved—
Page 11, line 42, leave out from ("continues") to the end of the subsection and insert the said new subsection.—(The Earl of Radnor.)
§ On Question, Amendment agreed to.
§ THE EARL OF RADNOR moved to leave out subsection (4) The noble Earl said: This subsection is really unnecessary because the persons specified have power already under the general law to prosecute.
§
Amendment moved—
Page 12, line 13, to leave out subsection (4).—(The Earl of Radnor.)
§ On Question, Amendment agreed to.
§ THE EARL OF RADNOR moved to leave out subsection (5). The noble Earl said: I hope your Lordships will note that many of these Amendments will shorten the Bill, which is an advantage. This subsection is really inconsistent with subsection (1) of Clause 1 of the Bill. Clause 1 (1) provides that the right to remove or exclude under the existing [...] of trespass is negatived by the Bill so [...] 269 as no offence is committed. This subsection merely reproduces that and is therefore unnecessary. Moreover, when you can remove under Clause 1 (1) you can remove forthwith, whereas in the subsection which I propose to omit you ask a person to go first, which seems a pity.
§
Amendment moved—
Page 12, line 20, leave out subsection (5).—(The Earl of Radnor.)
§ On Question, Amendment agreed to.
§ Clause 7, as amended, agreed to.
§ Clause 8:
§ Saving of rights.
§ 8.—(1) Neither the access for air and pedestrian exercise to any land to which this Act for the time being applies nor any provision of this Act affecting such land or the use thereof shall—
- (a) prevent or interfere with any dealing with or use of such land by or under the authority of the owner or occupier thereof or any person having any interest therein for the purposes of cultivation or building or other development, or for hunting, shooting, fishing, coursing, falconry, mining, quarrying, laying of pipes or wires, erection of posts, ropeways, cables or transmission lines, construction of reads, footpaths, railways, tramways or other means of transport or communication, taking of peat or turf, cutting of bracken, burning of heather or gorse, or any other lawful purpose; or
- (b) prevent or interfere with the withdrawal of support from such land by any such owner, occupier or person; or
- (c) notwithstanding anything in any other Act, or in any statutory order, scheme or regulation, subject any owner, occupier or person, to any obligation to fence, or provide protection against any danger from quarries, mines, shafts, drains, wells, holes, reservoirs, ponds, watercourses, posts, rope-ways, transmission lines or electricity apparatus, or any places which may be or become sources of danger; or
§ (g) operate so as to repeal, abrogate, or prejudice any rights, powers, regulations, or provisions to which the land is, or may become, subject under any Act of Parliament or any statutory scheme, order or instrument; or
§ (h) except as by this Act expressly provided or authorised affect the application to or with respect to the land of the common law or any existing or future Act of Parliament concerning trespass to land or the pursuit, taking, or protection of game or any wild birds or animals or fish.
§ (2) Any use of any land reserved or protected under subsection (1) of this section shall have priority over any access thereto allowed by or under this Act.
§ (3) Any person entering or remaining on any [...] to which this Act for the time being [...] lies for the purposes of air and pedestrian [...] shall do so at his own risk, and in the 270 event of his suffering any injury thereon he shall not be entitled to make any claim against any owner or occupier or sporting or other tenant of such land or any person having any interest in such land, or being lawfully thereon, for damages or otherwise, by reason only of his being upon such land with the knowledge of such owner, occupier, or person, or in consequence only of the provisions of this Act, or by reason only that anything lawfully existing, or done or omitted to be done in or upon such land or any adjoining land may be or become a source of danger.
§ LORD ADDISON moved, in subsection (1), to leave out "affecting such land or the use thereof." The noble Lord said: This is an Amendment to move words out of the Bill which I am advised are not necessary. As the Bill stands, it is said—and I think there is something in it—that land not affected by an order may be indirectly prejudiced by the fact that an order may be applied for and made. In some cases, as I said on Second Reading, it may, for example, affect a right of way over land which would in no case be affected by an order. I have been told that the Bill will not do anything of the kind, that in no case will it affect rights of way over land not affected by an order, but if these words, which I am advised are not in the least necessary, are omitted there will be no doubt about it.
§
Amendment moved—
Page 12, line 31, leave out ("affecting such land or the use thereof").—(Lord Addison.)
THE EARL OF RADNORI do not know whether there is any substance in the noble Lord's argument on this point, but I am quite prepared to accept an Amendment which moves out of the Bill words that are not needed.
§ On Question, Amendment agreed to.
§
THE EARL OF RADNOR moved, in subsection (1), to leave out paragraph (a) and insert:
(a) prejudice or affect any right or power with respect to the use of the land vested in the owner or occupier thereof or in any person having an interest therein; or
§ The noble Earl said: This is one of a series of Amendments to Clause 8 which are all more or less the same in their effect. Clause 8 deals with the saving of rights, and it seemed desirable that these should be defined in the Bill as broadly as possible and not as closely as they are in the present draft. As your Lordships will see, subsection (1) (a) tries to define closely the land with which people are dealing, and the Amendment 271 suggests that it could be defined in much more general terms. I think the words of the Amendment, which are much shorter than the words of the Bill, cover everything that is in the Bill and possibly anything more which may have been omitted. I beg to move.
§
Amendment moved—
Page 12, line 33, leave out paragraph (a) and insert the said new paragraph.—(The Earl of Radnor.)
§ On Question, Amendment agreed to.
§
THE EARL OF RADNOR moved, in subsection (1), to leave out paragraph (b) and insert:
(b) prejudice or affect any right to withdraw support from the land; or.
§ The noble Earl said: This is more or less on the same lines, and one might add that in this particular case of the support of the land the withdrawal of the support is as a rule not in the hands either of the owner or the occupier, and therefore it is most desirable that the clause should be drawn as widely as possible so that it should not exclude people who are not owners, occupiers or such other persons as have been mentioned in paragraph (a).
§
Amendment moved—
Page 13, line 4, leave out paragraph (b) and insert the said new paragraph.—(The Earl of Radnor.)
§ On Question, Amendment agreed to.
§
Amendment moved—
Page 13, line 9, leave out ("owner, occupier or").—(The Earl of Radnor.)
§ On Question, Amendment agreed to.
§ LORD ELTISLEY moved, in subsection (1) (c), after "watercourses" to insert "pipelines, aqueducts." The noble Lord said: I think that these words will add to the efficiency of the Bill. This Amendment was put down at the instance of the municipal authorities, water engineers and others engaged in public services of that kind. All that it is necessary for me to point out is that in all cases water pipelines, aqueducts to a certain extent, and underground valve chambers and meter houses constantly need excavating and taking up for purposes of renewal, repairs and similar work. I think that it is necessary that local authorities, particularly those engaged in the public service of water 272 supply, should obtain protection from any claims which may be made upon them by ramblers and other members of the public who will be affected by this Bill. I think you can all visualise the existence of a long length of pipe for the laying, relaying or repair of which it is found necessary to open the ground. The land may belong to the authority concerned, and at the same time the public are allowed free access. Without a protective clause of this nature, if a rambler should fall into one of these open cuttings, then the undertakers would be liable. I beg to move.
§
Amendment moved—
Page 13, line 12, after ("watercourses") insert ("pipelines, aqueducts,").—(Lord Eltisley.)
§ On Question, Amendment agreed to.
§
Amendment moved—
Page 13, line 16, leave out ("any such owner, occupier or person") and insert ("the owner or occupier of the land or any person having an interest therein").—(The Earl of Radnor.)
§ On Question, Amendment agreed to.
§
Amendment moved—
Page 13, line 17, leave out ("for, or in consequence") and insert ("in respect").—(The Earl of Radnor.)
§ On Question, Amendment agreed to.
§
Amendment moved—
Page 13, line 19, leave out ("by") and insert ("in consequence of").—(The Earl of Radnor.)
§ On Question, Amendment agreed to.
§ THE EARL OF RADNOR moved, in subsection (1) (e), to leave out "or any Act amending or re-enacting the same." The noble Earl said: This is really a drafting amendment. Reference to reenacting Acts is unnecessary, having regard to the Interpretation Act. I beg to move.
§
Amendment moved—
Page 13, line 23, leave out ("or any Act amending or re-enacting the same").—(The Earl of Radnor.)
§ On Question, Amendment agreed
273THE EARL OF RADNORThis Amendment is in line with the other Amendments that I have moved recently to Clause 8 in order to make this subsection as wide as possible.
§
Amendment moved—
Page 13, line 25, leave out from the beginning to ("to") in line 26 and insert ("any person").—(The Earl of Radnor.)
§ On Question, Amendment agreed to.
§ THE EARL OF RADNOR moved, in subsection (1), to leave out paragraph (g). The noble Earl said: It seems to be necessary to insert in this Bill any provision that the Bill does not repeal other Acts of Parliament which it does not purport to repeal. I therefore beg to move.
§
Amendment moved—
Page 13, line 36, leave out from ("easement") to the end of line 41.—(The Earl of Radnor.)
§ On Question, Amendment agreed to.
§ THE EARL OF RADNOR moved, in subsection (1), to leave out paragraph (h). The noble Earl said: The same remark applies to this paragraph as well. It is unnecessary to say that the Bill does not affect the Common Law or any existing or future Act of Parliament.
§
Amendment moved—
Page 13, line 42, leave out paragraph (h).—(The Earl of Radnor.)
§ On Question, Amendment agreed to.
§ THE EARL OF RADNOR moved to leave out subsection (2). The noble Earl said: This subsection seems unnecessary. Indeed, I find it very difficult indeed to give any meaning to it, and it is therefore most undesirable that it should remain in the Bill.
§
Amendment moved—
Page 13, line 42, leave out subsection (2).—(The Earl of Radnor.)
§ On Question, Amendment agreed to.
§
THE EARL OF RADNOR moved to leave out subsection (3) and insert:
(3) In respect of injury sustained on land to which this Act applies by persons being thereon in consequence of this Act, the rules of law relating to injury sustained on land by persons trespassing thereon shall have effect:
Provided that nothing in this subsection shall be construed as authorising the owner or occupier of land to which this Act applies, or any person having an interest therein, to do or cause to be done thereon anything involving a contravention of subsection (1) of Section one of this Act.
§ The noble Earl said: This is an Amendment of some importance, and it is rather difficult to arrive at the right wording. It deals with the possible injury that may be sustained by people who go on the land in consequence of the operation of this Act. It is true to say that landowners are somewhat exercised in their minds as to their possible liability in the event of injury. The intention of the Amendment is to make quite clear that the landowner is not liable to any greater extent through the operation of this Bill than he is at present. That intention is not made clear under subsection (3) as at present drafted, and I hope it is made clear in the new draft which is now before your Lordships. It puts the person who goes on land, so far as injury is concerned, in the same position as the ordinary trespasser, and the landowner is to that extent safeguarded. I do not think one could go farther than that, even though, of course, I realise that the operation of the Bill may mean that there are more people on the land and consequently more chance of injury being sustained. The landowner has certain obligations so far as injury is concerned, as I understand the law, with regard to anybody who is on the land, whether they are there of right or through wrongdoing. There is no desire, I think, among landowners to put themselves in a better position as a result of this Bill than they have hitherto.
§ The proviso is also necessary to ensure that no landowner shall do such actions as might frighten people from going on the land by putting what might be called deterrent dangers on the land to keep people off. That is the reason for the proviso. Whether it is correct legally or not I do not know, and whether it has achieved its object I hesitate to say, because I am no lawyer. The brief that I have been given, however, informs me that it deals with a section of the law on which there are very many decided cases, but the decisions of the cases do not seem to have arrived at any coherent result—at least, coherent to the layman. But I think after very careful thought that this Amendment will achieve the desired object, and will protect the landowner and at the same time not impose too much upon the ordinary rambler who goes on to the land. I beg to move.
§
Amendment moved—
Page 14, line 9, leave out subsection (3) and insert the said new subsection.—(The Earl of Radnor.)
§ THE LORD CHANCELLORI think perhaps it would be right that I should not leave the law in such a terrible state as that in which Lord Radnor left it, but should try to some extent to elucidate the point. There have been a great number of decisions with regard to the law applicable to the occupiers and owners of land, in reference to accidents which take place upon their property, and I think I am right in saying that the decisions are concerned not only with trespassers, who are a very common sort of person to find on one's land, but also with persons who are licensed to go on the land, and in another category are those who are invitees. A different standard has been laid down by the Courts in each of those three cases. With regard to trespassers on the land, I think the liability of the occupier cannot be put more briefly than it is in Halsbury's Laws of England, Second Edition, Volume 23, where in paragraph 864, on page 613, it is stated in these words. I am concerned only with trespassers here:
The occupier is in such a case liable only where the injury is due to some wilful act involving something more than the absence of reasonable care.So that, for example, if a trespasser is known to be present the occupier would be very unwise to practise his rifle shooting in the direction of the trespasser. That may be an extreme example, but it is one example of the fact that you may be liable although a man is a complete trespasser.The subsection will no doubt be subject to a good deal of criticism in another place, and my doubt is whether in fact it is very aptly worded. The Amendment says:
the rules of law relating to injury sustained on land by persons trespassing thereon shall have effect.The people that we are concerned with are not going to be trespassers, and I venture to think that the draftsman concerned might consider whether it would not be very much better to say that the liability of the occupier and other persons concerned with the land to which the Act applies shall not be greater than it would be if the order of the Minister had not been made. That would leave the liability exactly as it is. I think we are all concerned to see that the occupiers and others interested in the land are not put 276 in a worse position than they would be in if an order had not been made, and I cannot see why that should not be simply stated. Everyone would understand it, and it would not lead to the difficulties which my noble friend has pointed out to your Lordships.
§ LORD CRANWORTHFrom the point of view of the owners of land this Amendment is by far the most important of the Amendments on the Paper to-day. The liabilities of the owners of land, whether individuals or corporations, or public bodies like county councils, have increased enormously during the last few years, and really now they are almost intolerable, and we have to face here in this Bill some wholly uncharted sea of new responsibility. We shall never know where the responsibilities may end. A large number of people will go on to this land to which they will have access. Many of them will be townspeople, and unaware of the things which happen in the country, and they will be faced with grave perils of various kinds. They might fall, for instance, into a disused gravel pit, or branches of elm trees might fall upon them. They might be bitten by an adder, which is a common thing, or they might even sit upon a wasp's nest, which although not so dangerous can be remarkably unpleasant. If the landowner is to be responsible in any way for all these and many other things that might happen he will not know where his liability ends. Therefore it seems to me quite essential that some Amendment of this sort should be put into the Bill. The suggestion made by the noble and learned Lord, it seems to me, is one which might meet the case, but it is a matter for the lawyers, and all I hope is that my noble friend will succeed in getting into the Bill something which will make it doubly clear that no additional liability shall be placed upon the owners of land.
§ LORD ADDISONYour Lordships will have observed that my name is not associated with that of the noble Earl on the Order Paper in connection with this Amendment, because quite frankly I did not quite see what it would involve. I think everyone will agree that as the subsection stood in the Bill it might really commit the landowner to what the noble Earl described as an unknown liability of a very increased kind. That was not the intention of anyone friendly to the 277 Bill, and if on the Report stage some Amendment were made on the lines suggested by the noble and learned Lord Chancellor I am sure it would meet the justice of the case, and clearly be an improvement on the very ambiguous and apparently threatening terms of subsection (3) of Clause 8. With that reservation I would like to support the Amendment.
THE EARL OF RADNORThis, as the noble and learned Lord has said, is a very difficult question, and it is not easy to arrive at a right way of dealing with the problem, which we wish to deal with quite fairly. The noble and learned Lord wanted to put it in a very simple form, which I must say appeals to me, because simplicity in a Parliamentary Bill is something which is much sought after but rarely achieved. One of the difficulties which presented itself to me when considering what form the Amendment should take, was that unless it was clearly defined in the Bill it was not too certain whether those who would have access would be trespassers, licensees or invitees, and as the noble and learned Lord has pointed out, the liability of the owner of the land concerned is different as regards each of those classes of people. That is why it was suggested that it should be specifically mentioned that they were for this purpose, and this purpose only, to be treated as trespassers. I would suggest to your Lordships that you should agree to the Amendment on the Paper, and that I should have an opportunity, with my advisers, of carefully considering the discussion which we have had here to-day, and if necessary getting further advice from the noble and learned Lord on the Woolsack, with a view to seeing whether the Amendment could not be improved by an Amendment on the Report stage. If your Lordships will agree to that I think it would be the most helpful course.
LORD PHILLIMOREFrom what the noble and learned Lord Chancellor said and from what I gathered from the noble Earl, Lord Radnor, if we rest either on the position as it is to-day or on the law of trespass the responsibility of the landowner remains for accidents due to neglect calculated to bring about accidents. Under this Dill certain lands, perhaps only a few, will be over-run by large numbers of people. I might cite the instance of an open gravel pit or 278 chalk pit, and whereas an occasional passage by a trespasser cannot have led to any accident, it is fairly certain that if some hundreds of people pass that spot some one will be stupid enough to fall down the chalk pit. It seems to me that, if only owing to the frequency of access, the burden on the landowner is very considerably increased by this Bill. I would like to see Lord Radnor go rather further and do rather more than leave the landowner in the position in which he is now, vis-à-vis a trespasser. I submit that the enormous number of people who on certain moors, for example in the Midlands, will be passing over a given area, makes it certain that sooner or later there will be accidents at such places. You see the same thing on our roads. It is purely a question of frequency, and therefore I think some additional protection is required.
THE EARL OF RADNORI am quite prepared to consider all these things very carefully. I think the position as now left in the Bill is not satisfactory, and if your Lordships will agree to the procedure I have suggested, I will seriously consider the matter and see what can be done.
§ On Question, Amendment agreed to.
§ Clause 8, as amended, agreed to.
§ Clause 9 agreed to.
§ Clause 10:
§ Contribution by certain local authorities to expenses.
§
10. The council of a county, of a borough, or of an urban district having a population according to the last published census of more than twenty thousand, may pay or contribute towards—
(a) the expenses of the provision by the owner of land to which this Act applies of any facilities for the public or works for the protection of the owner or occupier of the land;
§ THE EARL OF RADNOR moved, in paragraph (a), to leave out "by the owner of" and to insert "on." The noble Earl said: This Amendment is put down so as somewhat to widen the matters towards which local authorities can contribute if necessary.
§
Amendment moved—
Page 15, line 13, leave out ("by the owner of") and insert ("on").—(The Earl of Radnor.)
§ On Question, Amendment agreed to.
279§ THE EARL OF RADNOR moved at the end of paragraph (a) to insert "or of the public." The noble Earl said: This is really the same point.
§
Amendment moved—
Page 15, line 16, at end insert ("or of the public").—(The Earl of Radnor.)
§ On Question, Amendment agreed to.
§ Clause 10, as amended, agreed to.
§ Clause 11 agreed to.
§ Clause 12:
§ Short title and commencement.
§ 12.—(1) This Act may be cited as the Access to Mountains Act, 1939, and shall come into operation on the first day of January, nineteen hundred and forty.
§ LORD ADDISON moved, in subsection (1), to leave out "Access to Mountains" and insert "Rural Access." The noble Lord said: I have been asked to move this Amendment because I understand it is unpopular. We have been told that the expression "Access to Mountains" has been a sort of banner for many years, which is true, and that the Bill which originally bore that name bears very little resemblance to this Bill. That also is true. But it is undeniably a fact that the great bulk of the land to which access will be provided under this Bill could not fairly be described as "mountain." Therefore, although the opening words of the Bill do allow for other lands to be included, it would be more in accord with good sense, and with what is in the Bill, if we were to describe it somewhat differently from merely "Access to Mountains Bill." I understand that I shall get into trouble with those who have been enthusiasts in this matter for a long time, and that is why it is that I have been asked to move this Amendment. The small Party to which I belong is always in trouble. I therefore beg to move.
§
Amendment moved—
Page 15, line 34, leave out ("Access to Mountains") and insert ("Rural Access").—(Lord Addison.)
§ LORD CRANWORTHIn spite of that impassioned appeal I hope your Lordships will not accept the Amendment. I can very well understand the temptation of my noble friends opposite when, every single word having been removed from the original Bill and entirely new words substituted, with the exception of 280 the Title, they should wish to change that also. But it is over fifty years since the Access to Mountains Bill was first brought forward. It was never meant at the beginning to be only access to mountains. It was "as many mountains as we can get hold of, and as much other land as well," and the same spirit which animated that Bill fifty-one years ago still exists to-day. I therefore see no reason whatever to change the Title. After all, if it is mere logic that moves the noble Lord, there will be a greater percentage of mountain in the access land than of rural land. In those circumstances, and in view of the situation of noble Lords opposite, I sincerely hope that the noble Lord will not press his Amendment.
THE MARQUESS OF CREWEIn the interests of accuracy I trust that the Amendment will be accepted. I gather that this is far beyond any question of access to anything that could possibly be described as a mountain. In the original form of this Bill the promoters were very largely alpine climbers. The late Lord Bryce, as he afterwards became, was a well known climber in the Alps, and what he and others had in mind was to be able to go to all the Scottish mountains and deer forests. I do not think they cared at all for downs or anything of that sort. I do not know whether noble Lords are afraid that the words "Rural Access" mean that everybody may be allowed to wander all over the countryside, but I cannot think that that danger exists.
THE EARL OF RADNORI asked the noble Lord to undertake this Amendment because I knew that he would speak on it with rather more enthusiasm than I should. The words "Access to Mountains" have been old friends ever since I have been alive, and a good many years before that, and it does seem rather a pity to drop an old friend in this rather summary way. I agree with the noble Marquess that it is entirely right that the Title should be altered because the Bill goes a great deal further than the original Access to Mountains Bill. On the other hand, I cannot help feeling that if this Bill goes back to the other place and is called a Rural Access Bill, those who are interested in the matter outside Parliament will not recognise the Bill at all. In years to come, it may be, people will say "We have not got an Access to 281 Mountains Bill, and we ought to have one," and one may be passed in spite of there being a Rural Access Bill on the Statute Book! It is not a matter that is really material, and if your Lordships will agree, we shall withdraw the Amendment and then we shall have an Access to Mountains Bill on the Statute Book.
§ LORD ADDISONI am glad logic is on my side and that the noble Marquess approves of the Amendment. But far be it from me to do anything to hurt anybody's feelings. In these circumstances, although logic is on my side, sentiment is not, and I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§
THE EARL OF RADNOR moved, after subsection (2), to insert the following new subsection:
(3) In this Act references to a person having an interest in land include references to a person entitled to sporting rights there-over, notwithstanding that such rights may be enjoyed by way of licence only.
§ The noble Earl said: This is consequential on the Amendment which eliminated mention of the sporting tenant.
§
Amendment moved—
Page 15, line 38, at end insert the said new subsection.—(The Earl of Radnor.)
§ On Question, Amendment agreed to.
§ Clause 12, as amended, agreed to.