HL Deb 01 December 1970 vol 313 cc446-67

5.45 p.m.


My Lords, I beg to move that this Report be now received.

Moved, That the Report be now received.—(The Lord Chancellor.)

On Question, Motion agreed to.

Clause 2 [Liability for damage done by dangerous animals]:

LORD AIREDALE moved Amendment No. 1: Page 2, leave out line 13, and insert— ("known to another person at a time when he had")

The noble Lord said: My Lords, in Committee it was the noble Lord, Lord Kilbracken, who put forward the opinion that Clause 2(2)(c) was ambiguous. This drew from the noble and learned Lord, the Lord Chancellor, the emphatic opinion that the paragraph was not ambiguous. So I will content myself merely with suggesting that it is not as clearly expressed as perhaps it might be, and in particular line 13, with its two different references to time. Accordingly, I have gone through the exercise of seeking to find alternative words which will preserve the intended meaning of the paragraph and which also are clearer and quite definitely unambiguous. I hope I have succeeded in this task. I am certainly ready to have my Amendment judged by those two standards: is it clearer than the original, and does it preserve the intended meaning? I trust the Amendment commends itself to your Lordships and I beg to move.


My Lords, I should like to support the noble Lord, Lord Airedale. I felt that this ambiguity existed as to the time to which the Bill referred; whether it was the time at which the damage was caused or the time at which the person had charge of the animal. I felt that it should be the former; it turned out that the Government's intention was that it should apply to the latter. So be it; we have to accept that. But I still feel that the ambiguity exists and that the noble Lord's Amendment clarifies it admirably.


My Lords, I should like to give this Amendment a little more consideration. If the noble Lord would not press it now, I would consider it before it goes to another place. My advice is that the noble Lord has not succeeded in producing anything less ambiguous; although he has succeeded in producing a form of words which reads a little more easily; I concede that at once. He has, in fact, produced something which, marginally, is more ambiguous, because as the Bill stands, the keeper is responsible even when the servant is dead. I am advised that where the servant whose knowledge is material is no longer alive, the noble Lord's form of words does not make the situation quite so plain as the present text. But I do not want to reject it out of hand. If the noble Lord will not press his Amendment now, I will see that it is given further consideration. I do not think that a great deal turns on this point.


I wish to consider what the noble and learned Lord the Lord Chancellor has just said, and therefore I am only too anxious to seek for the present to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 5 [Exceptions from liability under sections 2 to 4]:

VISCOUNT INGLEBY moved Amendment No. 2: Page 3, line 17, leave out from ("breach") to end of line 34 and insert ("by any other person, being a person having an interest in the land, of a duty to fence.")

The noble Viscount said: My Lords, I am very glad to have the opportunity of moving this Amendment again, this time in its proper form and with due notice. The words used in this Amendment are those recommended by the Law Commission. They state in paragraph 67 of their Report that the nature of the defence available is one of the more obscure areas of the present law relating to cattle trespass, and any new rules must seek to state the defence so that it is limited in nature and clear in effect. If this Amendment were adopted, subsection (6) of Clause 5 would read as follows: … but a person is not liable under that section where it is proved that the straying of the livestock on to the land would not have occurred but for a breach by any other person, being a person having an interest in the land, of a duty to fence. I suggest to your Lordships that that is reasonably clear and understandable. But when we turn to the words which are at present in the Bill, we find there are 16 lines of them. If I were to inflict all 16 lines on your Lordships, I wonder how many of your Lordships would be any the wiser.

I should also like to say that I have it on the authority of the noble and learned Lord, Lord Denning, that the wording at present in the Bill would reverse the decision in Crow v. Wood. I do not want to go into this matter again, as I did on the previous occasion, but the effect of the present change would be that those moorland farmers who still keep sheep would be responsible for the upkeep of the moorland walls of those who no longer keep sheep. That would be a very serious matter for them. I beg to move.


My Lords, I should like to support this Amendment. There are 16 lines in the Bill as it stands at the moment. I should not mind if they were simple, clear and intelligible but, as I read them, they are obscure, complicated and unintelligible. No farmer reading them could understand them unless he first went to a lawyer, no two lawyers would give him the same advice, and if we ever had to consider the matter in the Court of Appeal, as probably we should have to, we would have to condemn them, as we often have to do with legislation which comes before us. The particular words on which there may be a different opinion are in line 22, where it says the duty was owed to a person having an interest in the land In the case which we had to consider, I would have said that Mr. Wood, a farmer who put sheep on the moor, had not an interest in the land, but apparently some advisers on the other side thought that he had. But I will not go into the details, except to say that in my view the clause is too complicated to warrant endorsement by your Lordships' House.

Secondly, the proposal in the Amendment is quite clear. It is the Law Commission's own proposal. It is simply this. At the moment, as the law is and the Bill will hold, if a farmer's cattle stray on to another person's land and do damage, he is liable for cattle trespass absolutely; but there is the qualification that if it is the duty of the owner or tenant to fence so as to keep cattle out, then the original farmer whose cattle has escaped is not liable. That is the simple provision which the Law Commission have recommended and which it is sought to enforce by this Amendment. Goodness knows what trouble the Bill as it stands with these 16 lines will lead to. I would ask your Lordships to grant the Amendment accordingly.


My Lords, when we considered this matter in Committee the noble and learned Lord the Lord Chancellor was naturally unable to deal with it because there had been a mistake in the wording of the Amendment. I hope that on reflection the noble and learned Lord may feel able to accept this Amendment. My recollection is that the Law Commission considered the sort of point which subsection (7) is intended to cover and found any attempt to deal with it so complicated as to make it impossible. I have never understood why, as between two men, if A was supposed to put up a fence, it ought to be the duty of B to put up a fence as well. I understand that subsection (7) would reverse the decision of the Court of Appeal in Crow v. Wood. I think that that case is not only right in law but right in common sense. The Amendment moved by the noble Viscount, Lord Ingleby, is supported by the noble and learned Lord, Lord Denning, and on the previous occasion by the noble Lord, Lord Conesford, and by myself, and that, I respectfully think, is not a bad cross-section of the House. For those reasons, I hope that the noble and learned Lord the Lord Chan- cellor may feel able to accept the Amendment.

5.56 p.m.


My Lords, I think I should say a little on behalf of the complicated words which have met with so much disapproval, though on another occasion I have expressed the view that I have no particular love for them. The House should be aware that these words were inserted at the express request of the Law Society to deal with the very point which I endeavoured, though obviously unsuccessfully, to explain on an earlier occasion.

The matter starts from the position that a farmer's cattle trespass on somebody else's field, and the person on whose field the cattle trespass brings an action against that farmer. The Bill, as drafted and as it will remain, whether the Amendment is accepted or not, provides a special defence for the person whose cattle have trespassed. The defence is this: "It is all your fault, because you did not fence your own ground against my cattle and you are under an obligation to do so."

At this stage, because of what the Law Commission recommended, which is also the effect of the Amendment as drafted now by my noble friend Lord Ingleby, the Law Society rightly pointed out that it was certainly irrelevant and might be undesirable if the duty to fence owed by a person was owed only to his own landlord—was a private arrangement between him and his own landlord. That seemed to me a perfectly valid point. From that moment onwards the Law Society pressed the point on the Parliamentary draftsman. The Parliamentary draftsman, a man of considerable ingenuity, scratched his poor head and tried to meet the Law Society's perfectly legitimate complaint; and although many of us, including myself, have tried to improve on the complicated set of words which the Parliamentary draftsman devised, we have all been unable to do so. I say that, having fulfilled diligently my promise made on the last occasion to my noble friend Lord Ingleby that I would try my own hand on improving on the Parliamentary draftsman. I have established to my satisfaction that I have failed.

In the meantime, the Law Society pressed me to stand to my guns, despite the powerful batteries brought against me by noble and learned Lords. I find this an embarrassing position. I fully accept that the Law Commission's presentation is simple. My advice is that the noble and learned Lord the Master of the Rolls is wrong in thinking that the decision in Crow v. Wood would be affected adversely if I were to stand to my guns. That is a point which at any rate is in doubt. The advice I have received is that the position is not that which the noble and learned Lord has given to the House. I do not want to argue this obviously difficult point, and it would be silly for me to suppose that I am more likely to be right than the the noble and learned Lord. What the House has to face is that this is an extremely sophisticated point. We have to choose, and Parliament in the end will have to choose, between a statement of the law which is certainly defective in the rather sophisticated way the Law Society represented it to me, and remedying the defect by a set of words which is certainly complicated and difficult to understand, though not, I would say to the noble and learned Lord the Master of the Rolls, impossible to understand: certainly too difficult for a farmer to understand, but not too difficult for a solicitor.

I do not feel that I can help the House much more than that. I have been receiving pressure from all sides, and if it is the will of the House I will accept the Amendment, provided it is fully understood that the law will be less perfect as a result of accepting it—at least that is my advice, and it is my belief—than as a result of retaining the existing test. This is not a matter on which I should wish to stand on my dignity or try to force a Division, or to force people to vote about it contrary to their conviction, so long as they realise that by choosing a simpler form of words they are choosing a less perfect form of law. I am quite willing on those terms to accept the Amendment.


My Lords, I greatly admire my noble and learned friend on the Woolsack, not least for the intellectual agility which enables him to understand subsection (7). The only point that I would add is that I think it important that legislation which goes from this House should be intelligible to the ordinary man if he takes care to understand it. Subsection (7) was described by the noble and learned Lord, Lord Gardiner, on the last occasion, as "quite incomprehensible"; it was described by the noble and learned Master of the Rolls as "even to a lawyer, almost unintelligible" (though, as I remarked on the last occasion, if the matter came before the Court of Appeal to be construed, I know that the Master of the Rolls would manage it somehow), and I said, quite candidly, that I could not understand a word of it. Those being the reactions of the noble and learned Lord, Lord Gardiner, the noble and learned Master of the Rolls, and the man in the street, such as myself, I think that some farmers would have been puzzled beyond endurance. Therefore I very much welcome what my noble and learned friend on the Woolsack has now said: namely, that he will accept this Amendment.

On Question, Amendment agreed to.

6.3 p.m.

LORD KILBRACKEN moved Amendment No. 3: Page 3, line 38, leave out ("the British Islands") and insert ("England and Wales").

The noble Lord said: My Lords, the noble and learned Lord on the Woolsack seems to be in quite an accepting mood this evening, and I am hopeful that he may give sympathetic consideration to this Amendment, which is similar to, though not identical with, the one I put down on the Committee stage. I am now proposing that the words "England and Wales" should be substituted for "the British Islands". On the last occasion I said that I was not sure, or did not know, what the British Islands were, and it was quickly pointed out to me, both by the noble Lord, Lord Airedale, and by the noble and learned Lord on the Woolsack, that I should find the definition in the Interpretation Act 1889. I immediately looked it up, and found that of course they were quite correct, and that "the British Islands" means Great Britain, the whole of Ireland, the Isle of Man and the Channel Islands. If that is what British law says, then of course it is a definition that we must accept. But I would only say that it shows the law to be what I had better call a small, long-eared member of the equine species, because it goes to such trouble to define an area which in point of fact can never in any circumstances have any use.

The British Islands as defined by that Act, and as subsequently clarified by the Ireland Act and the Statute of Westminster, defines an area which cannot be considered a political one, when it includes the Republic of Ireland, and certainly is not a geographical area, when it contains the Channel Islands, which are geographically much more part of France or of the Continent of Europe. Therefore I see no need to find some other way, as the noble and learned Lord on the Woolsack advised me, of describing this heterogeneous zone to which we should never in any circumstances ever have to refer. If we should never have to refer to "the British Islands", surely that is particularly the case here. Why should we be concerned whether animals are domesticated in Hoy or Arran (neither noble Lord is now present) when what we are concerned with is whether they are domesticated in the area to which this Bill when it becomes an Act will apply. That area is England and Wales, and I am therefore suggesting that the words "England and Wales" should be substituted for "the British Islands".

Perhaps I should mention one last point. The noble Duke, the Duke of Atholl, expressed some apprehension on the last occasion about the position of his Highland cattle if my Amendment—and this would also obtain under my present Amendment—were accepted. But I do not feel that he need have any apprehension, since when such cattle are in England and Wales they would commonly be domesticated, and there would be no more danger of their being categorised as members of a dangerous species than (shall I say?) Charolais cattle; which were originally domiciled in France and are now becoming quite common in this country. It is a fact that those that are in this country are commonly domesticated. I think "England and Wales" is the logical phrase to use here. I beg to move.


My Lords, I do not believe that much will turn upon which of these two expressions is used in this part of the definition of a dangerous species of animal, but my suspicion is that if it had occurred to those who were drafting this clause that this Bill did not apply to Scotland or to Northern Ireland the expression they would have used would have been "England and Wales", rather than "the British Islands". I should have thought, therefore, that it was tidier to accept the Amendment and have the words "England and Wales" in this definition.


My Lords, I rather share the view expressed by the noble Lord, Lord Airedale, that in practice not a great deal will turn upon this. But I would respectfully suggest to the House that the argumentation in support of the Amendment is to some extent fallacious. I think everybody knows what "the British Islands" means; and if anybody had any doubt about it, that doubt would be set at rest by Section 18 of the Interpretation Act 1889. But my own view is that it does not require Section 18 of the Interpretation Act to tell people what is meant by "the British Islands". The question is whether wild and domesticated animals should be defined by reference to a political boundary or to an œcological boundary. Personally, I prefer an (ecological boundary.

I do not myself believe that very much turns on this point in actual practice, because offhand, and not being a scientist, I do not really know whether there are animals domesticated in, say, Northern Ireland which are not domesticated in England. If there are, I should certainly feel that they ought to be treated as domestic animals for this purpose. But my own feeling is that the House would not be wise to accept an Amendment which applies a political test to an ecological factor. For that reason, I would advise the House, on the whole, without feeling very strongly about the Amendment, that the text is better as it stands.


My Lords, I am grateful to the noble Lord, Lord Airedale, for his support. In view of what the noble and learned Lord has said, I do not propose to press the Amendment, but I would emphasise again that "the British Islands" is not a political or geographical area. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 6 [Interpretation of certain sections used in sections 2 to 5]:

6.10 p.m.

LORD KILBRACKEN moved Amendment No. 4: Page 3, line 41, after ("cause") insert ("severe").

The noble Lord said: My Lords, at the Committee stage of the Bill I expressed the opinion that the definition of an animal of "a dangerous species" was drawn too widely and would include a number of animals, such as rabbits, and even mice, and other "wee sleekit beasties" which are not commonly domesticated in England and Wales but, because they are liable to cause damage, would be designated as animals of a dangerous species. The proposal I then put forward did not prove acceptable to the noble and learned Lord on the Woolsack. I am now proposing a more modest one, to insert the word "severe" before the word "damage", so that for an animal to be an animal of a dangerous species it would have to be not only not commonly domesticated in the British Islands, but also one likely to cause "severe" damage, rather than simply damage. I hope that this Amendment may be acceptable to your Lordships, and I beg to move.


My Lords, I am not sure that I wholly agree with the noble Lord, Lord Kilbracken, because I should have thought that both rabbits and mice were commonly domesticated; and not only in England and Wales but also in the Republic of Ireland. However, being in an accommodating frame of mind, I desire to accept the noble Lord's Amendment. I do not think it will do any harm, and it may do some good.


My Lords, if the Amendment is accepted, will it not render redundant the last words of paragraph (b) of subsection (2)? They say: … or that any damage they may cause is likely to be severe.


No, my Lords; I think not. I should like to consider that point before I give the noble Duke an assurance on it. I will ask my advisers to look into that point.


My Lords, would it be in order if I replied to the noble Duke?


Yes, indeed.


Two quite different things are involved here. One is whether these characteristics are likely to cause severe damage, in other words whether the beast has characteristics that are likely to cause severe damage. If it were not commonly domesticated that would make it a member of a dangerous species. Something quite different is when any damage that the beast may cause is likely to be severe. With respect, that is not the same thing.

On Question, Amendment agreed to.

LORD AIREDALE moved Amendment No. 5: Page 4, line 15, leave out ("accepts") and insert ("incurs").

The noble Lord said: My Lords, subsection (5) starts by saying: Where a person employed as a servant … accepts a risk incidental to his employment …". It does not mean accepts a risk, but undergoes a risk, or incurs a risk. I should have liked to go further than this Amendment and amend the next line, too, so that the word "accepting" might be changed to "incurring". I do not think I would get away with that—seldom in this world do you get everything that you ask for. But I beg leave to move this Amendment, such as it is.


My Lords, I was grateful to the noble Lord, Lord Airedale, for supporting me on my Amendment and I wish that I could support him on this one. However, I feel great reservations about it. I feel reservations about subsection (5) altogether. What this means is that where a person in the course of his employment daily has to deal, let us say, with one of those vicious bulls or a bull which is likely to have a fierce temperament—and we were talking about this on a previous occasion—the owner or keeper of the bull is liable for any damage it does to him, even though he is, day after day, looking after this bull, feeding it, and so on, because it is part of his employment. It seems to me that under the Bill as it stands at present the employee must have accepted the risk, which tends to imply more than the noble Lord's Amendment would imply, namely, that he has been asked to accept a risk and has done so. The noble Lord's Amendment means that the employee need only incur a risk, and if he does something on his own initiative, without having been asked to do so by the owner of the animal, and without being asked to accept the risk, the owner is still liable. It seems to me that this Amendment would take the subsection further away from the position in which I should like to see it.


My Lords, when a risk is a calculated risk does one "accept" it or "incur" it? This is further to the point raised by the noble Lord, Lord Kilbracken.


My Lords, may I ask whether wearing a "red shirt to a bull" is adding to the calculated risk?


My Lords, my noble friend should know that bulls are colour blind. It is one of the biggest fallacies in Nature to think that bulls dislike red. They do not; they see it as a dull, black-and-white photograph colour. Turning to the subject matter of this Amendment I must say that, left to myself, I should have agreed with the noble Lord, Lord Kilbracken. But the advice I have had is to the contrary: that the Amendment of the noble Lord, Lord Airedale, is perfectly safe to accept and that the use of the word "incurs" instead of "accept" where it occurs for the first time in the clause, as drafted, is slightly more convenient because it runs more easily in cases where a risk is incurred unknowingly. I am told that it makes no difference whether the Amendment is accepted or not, and on that basis I should like to accept it.

On Question, Amendment agreed to.

Clause 8 [Interpretation of certain expressions used in sections 2 to 5]:

6.19 p.m.

THE LORD CHANCELLOR moved Amendment No. 6: Page 5, line 19, leave out subsection (2) and insert— ("(2) Where damage is caused by animals straying from unfenced land to a highway a person who placed them on the land shall not be regarded as having committed a breach of the duty to take care by reason only of placing them there if—

  1. (a) the land is common land, or is land situated in an area where fencing is not customary, or is a town or village green; and
  2. (b) he had a right to place the animals on that land.")

The noble and learned Lord said: My Lords, I have put down this Amendment in pursuance of the obligations that I incurred on the Committee stage. This time I tried my prentice hand and rather succeeded, although the drafting Amendment is professionally drafted and not my original effort, which followed the same lines, but rather inexpertly. This is a definite improvement to the Bill. The noble and learned Lord, Lord Gardiner, has always disliked guidelines, and said so on almost every occasion. I have always disliked guidelines and said so on almost every occasion. The farmers disliked the guidelines because they caused them great anxieties. The noble Lord, Lord Henley, made the point that, for the purposes of this liability, there was really no logical difference between commons and open land.

The end of it is that I have suggested the abolition of the guidelines but a clear indication that a farmer is not liable by reason only that he has put his animals on land on which he is entitled to put them and which is normally unfenced and unenclosed. I have also brought together the commons and village greens with unenclosed land. My own feeling is that I can with a good conscience commend this Amendment to the House as an improvement, and I hope it will give satisfaction to those who on an earlier occasion pressed on me the views of the farmers. My Lords, I beg to move.


My Lords, may I immeditely thank my noble and learned friend for his very handsome fulfilment of the undertaking which he somewhat hesitatingly gave to the Committee on the previous occasion. For myself, I never had any doubt that his ingenuity and energy would find some satisfactory solution, and certainly from the point of view of the farming community he has admirably found it. I express my own gratitude. I have also had some words with the National Farmers' Union and I can express their gratitude as well—which is perhaps a little less likely, but it is forthcoming. They really are most grateful to the noble and learned Lord for removing what is, or has been, quite a serious anxiety on the previous structure of Clause 8.

There is one point on which I should like to ask the noble and learned Lord to say a word when he replies to this short debate. That is on the interpretation of "customary". Obviously, courts will have to interpret what "customary" means, and I presume that the livestock farmer concerned will have to establish that no fencing is customary in the particular area. Would this normally be by reference to living memory? Is this normally the evidence which would be satisfactory to a court? This, I think, is the only remaining anxiety that farmers still have.

As to the general structure, what my noble and learned friend has succeeded in doing is in putting this unfenced land, especially in the upland areas which are used for livestock rearing, in precisely the same category as common land; and that is where it ought to be. There is no doubt about it now. At the same time, he has made it absolutely clear that where a livestock farmer grazes his cattle on this land he is not in breach of duty by so doing. Although, inevitably, areas of doubt still remain, I feel, as I said on the Committee stage debate, that when such a major radical change in the law is being made it is only fair on the livestock farmers concerned that they should not be left substantially at risk.

On the previous construction of the subsection, although obviously great efforts had been made in the various points which were enumerated in subsection (2), I always felt that the livestock farmer still was at risk because, in the event of an accident occurring with his cattle, he had to show that he had taken reasonable care if an action was brought against him. What he had to plead was that he had taken reasonable care in all the circumstances; but that meant that he had done nothing, since no care was needed in the areas concerned because everybody knew that cattle strayed on the roads and that the roads were not fenced. It seemed to me that the clause as previously constructed really was straining the meaning of words. Therefore, I am very grateful to my noble and learned friend for the Amendment he has put forward, which removes what seemed to be an anomaly.


My Lords, I regret that the noble and learned Lord has given way to this extent to the National Farmers' Union. I am not sufficiently inexperienced as not to appreciate that, if that is so, no opposition to the Amendment is likely to succeed. True, I never liked all the paraphernalia of the guidelines, as the noble and learned Lord has called them, partly because, among other things, they included references to an area and I never understood what the area was. But this only emphasises that point, and makes it rather worse, because a judge decides whether the man is situated in an area where fencing is not customary. I suppose "area" can mean anything from a couple of farms to Cumberland or South-East England; and how anybody is to know how this word is to be interpreted I am not sure.

There is an alternative. The next three Amendments on the Marshalled List are, I think, merely alternatives to this Amendment and, speaking for myself, I should prefer them (if it is not out of Order to refer to them) primarily because they bring back the concept of what is reasonable or unreasonable. In all these cases the circumstances will vary very greatly, and the more we leave it to the judge to exercise his good sense as to what is reasonable or unreasonable in all these circumstances, I should have thought the better. I do not know whether we are to have a discussion on Amendments Nos. 7, 8 and 9 before coming to a determination on Amendment No. 6, but the House may feel that that would be the proper course to take.


My Lords, to clarify the phrase "where fencing is not customary", would it not be much simpler to say: where fencing has not been carried out for a hundred years"? We should then know where we were; but if we say "customary" or, as my noble friend Lord Nugent suggested, "within living memory", those terms can be interpreted very widely.

6.27 p.m.


My Lords, I am afraid that, although an amicable mood is prevailing here, I cannot find myself in agreement with the proposal in this Amendment, for this reason. The question of fencing is a question which does not necessarily depend upon "customary fencing". Obviously, if you were always to rely upon what is customary you would be placed in a difficulty. For example, you would have been faced with the situation in the New Forest that it had been customary for a very considerable time not to have any fencing. However, those concerned thought that the custom was a bad one and they produced regulations which required fencing to be provided, with the result that the danger which had prevailed before—and I referred to the figures; I do not want to repeat them—was reduced; a considerable number of accidents was reduced to practically none.

In my view, the noble and learned Lord, Lord Gardiner, was perfectly right. First of all, on the question of area, what is the area customarily not fenced? One might have a field with a very short frontage which for years had not been fenced. It becomes, consequently, a place where fencing was not customary. Surely, nobody here would be prepared to say that, because that was the situation by custom for years—a hundred years, if you like—it should not be fenced at the present time in order to protect the people who suffer from animals straying from that area. I think, if I may say so with respect, that the word "customary" here is wrong. "Reasonable"—well, that is another matter. It may very well be that the other Amendments about to be proposed will cover the point. But certainly one has to look at these questions, and I have been concerned in this matter for many years now.

We have heard a lot about the National Farmers' Union, and we may have a very high regard for it; but we also must have regard to the person who is injured by a straying animal. That is the side we are dealing with. It is already covered to some extent. The Bill as it stands at present has serious restrictions so far as a person claiming compensation is concerned. If noble Lords will look at this provision they will see that it is likely to result in a large number of cases concerning people who are not in a position to take legal proceedings, with consequent cost upon the community for legal aid and so on. We have to look at this particular measure as being one to protect those who are injured, or the relatives of those who are killed, in the matter of damages. Time after time learned judges have commented upon this matter and have pointed out how bad the position is in so far as the common law is concerned.

Looking at it from that angle, and with the greatest respect to the noble and learned Lord the Lord Chancellor, I think it is wrong to have actions in the courts as to what is customary, in the first place, and to abide by a custom in a matter of this nature, where in fact we are deviating from the long custom because the Bill itself is a deviation from custom, the custom having been that the compensation should not be granted. That may not be as strong an argument as the other, but at the same time I would beg the House to consider the matter from the point of view of the injured person.


My Lords, as someone who lives in a county where there are wide areas of unfenced land, may I add my thanks to the noble and learned Lord the Lord Chancellor for moving this Amendment, which certainly in the North-West of England will not be looked upon just as a surrender to the National Farmers' Union, which seems to be the point of view of noble Lords opposite. I have received carefully reasoned memoranda from the county councils of both Cumberland and Westmorland and from the Lake District Planning Board, and they would not like to be looked upon just as agents of the National Farmers' Union but as people who represent the broad spectrum of all reasonable opinion in their districts.

I do not want to speak at any length, but there is this one point. I think it is a mistake to labour heavily over the word "custom", because in the agricultural community it is perfectly clear what the custom of the country is, even though it may not be clear to all those who live in towns—if rather less clear to-day than it was a few years ago before more and more of our custom had been written in detail either in appendices to Bills or in statutory regulations. But to those who will have to work this system the custom of the country will not present the great difficulty which speeches of noble Lords opposite seem to imply.


My Lords, will the noble Lord forgive me for interrupting him? Would he not consider that if a person had not fenced his own land, small though it might be, for many years, it had been customary for him not to have fencing?


My Lords, may I suggest that the word is not being used in the technical sense at all; it just means "usually".


My Lords, may I congratulate the noble and learned Lord on the Woolsack? I think the noble Lord, Lord Janner, has overlooked some facts. I do not believe that, in any of the cases he imagines, the actual result would be different under the Amendment moved by my noble and learned friend on the Woolsack from what it would have been under the words previously in the Bill. In my submission, what this Amendment makes clear is this: that the liability in any case is for negligence. What this Amendment says is that a person shall not be held guilty of negligence by reason only of the fact that he did not fence on a common or in places where fencing is not customary. I do not believe that in fact the Amendment would alter the result from what it would have been without it. What I think it does is to add very much to the clarity of the clause and to concentrate on the one point that was so doubtful to many people; namely, what duty to fence was implied in the Bill as it stood.


My Lords, I too, want to congratulate the noble and learned Lord the Lord Chancellor, because in my view he has thought up an answer to this problem which has bothered us all for about eleven months since we first started talking about this matter. I was most surprised to hear the noble and learned Lord, Lord Gardiner, being slightly critical, because I thought he was also going to say that this Amendment was a good one. Many months ago the noble and learned Lord, Lord Gardiner, suggested that the whole clause should stop at subsection (1) and that none of the guidelines should be in at all. The only guideline which has been left in is the last one at the bottom, which makes it quite clear that because land is common land and cannot be fenced it should not make the owner of the land liable for negligence. What we were struggling after for so long was to put exactly the same kind of land which is not common on to all fours with common land. That is all that has been done. The whole question of putting the farmer and other people at risk for negligence is in no way altered, so it seems to me that we have an extremely good Amendment.

I still agree with the original thoughts of the noble and learned Lord, Lord Gardiner, that it would have been better to leave the clause at subsection (1) and to say nothing at all either about commons or about land which is unfenced but which is not common. Nevertheless I think the general feeling is that both types of land should go in. If I may say so, the noble Lord, Lord Janner, has missed the point. This Amendment will not make it any more difficult to hold a man responsible for negligence. He is in exactly the same position as he was with the Bill unamended. It seems to me that the Amendment is a very much better one than that standing in the name of the noble Lord, Lord Chorley, and myself, and my own feeling is that the House should accept the Lord Chancellor's Amendment.


My Lords, may I endorse what the noble Lord has just said? What we wanted to do was to remove the fear on the part of farmers and others in these open spaces that they were going to be required to fence these wide areas of land. My noble friend and I thought it was best to face it and make the failure to fence such land not evidence of negligence. When we saw the Amendment put down by the noble and learned Lord, which much more satisfactorily and easily secures this object, we felt there was no further need for our Amendment. Of course it had already been sent in, and that is how it comes to be on the Marshalled List, but we do not propose to move it.


My Lords, may I, in two sentences, express the hope that your Lordships will accept this Amendment with gratitude. Apart from the point of view of the farmers, as I said at a previous stage of the Bill there are a great many people who still like to drive or walk along roads which are not fenced, and the clause as it stood would, at any rate by implication, put pressure on people who were in doubt as to what they ought to do to fence where it was really unnecessary to do so. So it seems to me that this Amendment meets the point of view of the general country lover, apart from the point of view of the landlord or the farmer.

As to guidelines, I have had some experience in legislation laying down guidelines. In my day the draftsmen used to say that when you had told the tribunal what they should take into account and included every suggestion that every interest wanted, you should end up by saying "and all the other circumstances of the case", thus endeavouring to restore the discretion of the court or the tribunal. So I think we are rid of guidelines and we are also rid of any pressure to fence unnecessarily. We have achieved a great deal, and this Amendment seems to me to be calculated to give general satisfaction.


My Lords, may I say a word in reply to the various speeches which have been made? I am extremely grateful to all those noble Lords who have welcomed the Amendment. May I say to the noble and learned Lord, Lord Gardiner, that I was not conscious of yielding to anybody, except the general feeling of the debate in Committee, which rather pressed me to look at the matter again. I looked at it again in the light of the criticisms, which were well nigh universal, on the existing subsection (2). Not least effective among those criticisms were those which came from the noble and learned Lord himself, who on more than one occasion expressed himself strongly against them. I then tried to do what I thought the House wanted. I would have no shame in yielding to the National Farmers' Union if I thought that they were right.

The noble and learned Lord, Lord Gardiner, seems to think that this is against the Ten Commandments; I can assure him there is nothing about the National Farmers' Union in the Ten Commandments. I believe it is a good thing to yield to people if you think they are right. I felt certain, having heard the strength of the anxieties they expressed, that they had a genuine and legitimate fear which ought to be removed if it could be done without injustice to anybody. When this was reinforced, for instance, by the noble Lord, Lord Hurcomb, who spoke on behalf of the amenities of the countryside primarily rather than that of agriculture or the farmer, and by my noble friend Lord Inglewood, who voiced the views of the County Councils' Association, I thought that I should be particularly mulish if I did not take account of the criticisms offered. I genuinely thought that this was an improvement. The words I had used in the original draft which I made myself were different words and did not include the word "area" or "custom"; but I am advised that these are rather better, so I willingly embrace them.

As regards the criticisms of the noble Lord, Lord Janner, I would point out that the word "area" exists in the draft which he has clasped to his bosom; it occurs in guideline (e) and is just as vague there as in my Amendment. The word "reasonable" which he has also clasped to his bosom remains in the Bill if my Amendment is accepted, because it is in subsection (1). So I think he can reassure his own mind that justice continues to be done, because it is based on negligence, and the farmer and the landowner and the amenity interests have got something they can understand. I had hoped, although I am now disappointed in that hope, that the noble Lord, Lord Gardiner, whom I may refer to as a legal purist, had got rid of something he legitimately disliked. I hope I have even now pleased a majority, and I am very grateful to those noble Lords who happen to agree with me.

On Question, Amendment agreed to.


My Lords, I think Amendments Nos. 7, 8 and 9 fall now, because they relate to words which have now been omitted. Amendments Nos. 10 and 11 might with convenience be discussed together.

6.44 p.m.

LORD KILBRACKEN moved Amendment No. 10: Page 7, line 17, leave out ("any")

The noble Lord said: My Lords, at the Committee stage of the Bill I proposed to substitute the words "one or more" for the word "any", because I felt, in my ignorance, that the definition should not only require more than one animal of the different species enumerated. In my studies of the Interpretation Act in another connection, I discovered that the plural includes the singular and the singular includes the plural, unless it is stated to the contrary. My Amendment was therefore quite unnecessary, but the noble and learned Lord the Lord Chancellor said on that occasion that he felt that the word "any" was otiose. Since I am sure that he does not like to see an otiose word in his Bill, I beg leave to move this Amendment to delete it.


My Lords, if I may just express an opinion, it is that both this Amendment and the next are improvements and I happily accept both.

On Question, Amendment agreed to.


My Lords, I beg to move Amendment No. 11.

Amendment moved— Page 7, line 21, leave out ("any of")—(Lord Kilbracken.)

On Question, Amendment agreed to.