Administration of Justice Bill [H.L.] (Hansard, 6 May 1982)

§ The Lord Chancellor
My Lords, I beg my noble friend's pardon for having been distracted momentarily. If he noticed the source of the distraction he will realise that I had no alternative but to be distracted. As I said to my noble friend, and on Committee, I promised to make such consultation as I could and I wrote to him, at any rate, as at that stage, on 19th April. But I think that my noble friend is perhaps underestimating the difficulties which are raised by this amendment. To begin with, if one looks at it, it is an attempt to disapply the Unfair Contract Terms Act 1977 to anybody who approaches land or enters on land for recreational purposes. In parenthesis, I notice that the noble and learned Lord, Lord Elwyn-Jones, has just joined the Liberal Party!
My Lords, we all remember that a Labour Government passed the Unfair Contract Terms Act in 1977 and I very much doubt whether the Labour Party would be particularly keen on emasculating one of the clauses of their Bill after so short a period of time, As I have said repeatedly, I promised the Labour lawyers in both Houses that I would not allow this Bill to be introduced for the purpose of introducing controversial matter—in return for which they promised me that they would facilitate its appearing on the Second Reading and Committee in another place. I must be true to my word; I must deliver the goods which I promised to deliver. Unless they say that this would meet with their full approval, I am bound to tell my noble friend that it is something which is more than I can honourably do.
There are two suggestions which were made by him and I have made such inquiries as I can make in the time. I would ask the House to remember the history of this matter. The duty to trespassers has been the subject of judicial controversy throughout my professional lifetime and, on the whole, the most recent pronouncement of the House of Lords on the subject has been more generous to trespassers in the Herrington 1291 case than was my father when he presided over the House of Lords in the Addie v. Dumbreck case in 1929.
Again, I very much doubt whether the change which my noble friend suggests would meet with the kind of universal approval which alone is appropriate as the criterion for getting into this Act. It may be something which is desirable. I understand that those who are responsible for land, the landowners and the farmers—and I was both a landowner and farmer for about 14 years of my life, so I sympathise with their point of view—are of course concerned with the standard of care imposed on landowners as a result of the case of British Railways Board v. Herrington by the exercise of the judicial powers of this House.
One of the troubles is, of course, that neither of the two suggestions excludes urban land, nor could that be so if one was going to do it at all. The difficulties, both for urban land and urban consumers, are very much greater than for country land and country consumers. The state of play as a result of my inquiries appears to be something like this: I consulted about 40 bodies and individuals, and comments have been received already from a number of these. They are a very diverse group. They include the judiciary, local authority organisations, consumer groups, leisure groups and Government departments.
The state of play I think has varied to date. The consumer bodies, the Consumers' Association and the National Consumer Council—which are of no mean authority—and some water authorities, for instance the Welsh and the Yorkshire water authorities, are strongly against the suggested amendment to the 1977 Act. The noble and learned Lord the Lord Chief Justice thinks the Act could be amended but not in the sense proposed in the amendment, and only in a very limited and specific way. The Thames Water Authority was in favour of an amendment to the 1977 Act but I am not sure in what terms. The Council of Circuit Judges, the GLC and the National Caving Association—which I thought was only peripherally interested—did not comment.
On the statutory duty towards trespassers, nearly all those who commented on the suggestion agreed that a statutory formulation of the duty owed to trespassers would be helpful but they did not all say what it should be. Those who thought it would be helpful included the GLC, the Council of Circuit Judges, the water authorities and a number of Government departments. The noble and learned Lord the Lord Chief Justice thought that the common law position, as disclosed by Herrington is more favourable to occupiers than would be the suggested change in the law. Some of those who think that a statutory formulation of the duty owed to trespassers is needed do not think that criminal trespassers should be excluded from this and they of course form nowadays quite an important group. They include at least one Government department and the Lord Chief Justice. Having said that, I have tried to carry out my obligations to my noble friend; but I hope that, having regard to the peculiar character of this Bill, he will not feel it necessary to press his amendment in the light of the points I have chosen to put to him.

§ Lord Elwyn-Jones
My Lords, I apologise to the noble and learned Lord and to the House for adding to 1292 the "Department of Confusion", first of all by interfering with the noble and learned Lord on the Woolsack, which is a most regrettable error on my part, and then adding to the confusion by appearing to join the Liberal ranks by sitting upon their Benches in order to hope to avoid further confusion to the noble and learned Lord. My apologies, my Lords.

§ Lord Rawlinson of Ewell
My Lords, those of us who might be attracted to my noble friend's proposal I hope will appreciate that what the noble and learned Lord has said is overwhelming and therefore I hope my noble friend will not press this matter although there is much sympathy in many quarters for it.
May I take this opportunity, which is the first one for me of speaking again on this Bill, of withdrawing something that I said on the Committee stage? I say that because I heard what the Chief Whip said about discussion on this Bill ending tonight at half past seven and we may not have reached the subject upon which I wish to direct my apology. Secondly, I have to leave for Strasbourg for a professional engagement.
When I spoke on the Committee stage it was with reference to the new clause moved by the noble Lord, Lord Gifford. He referred to the case of the Home Office v. Harman. I spoke of the conduct of the trial out of which the contempt arose. I referred to the case of Williams v. Home Office. In referring to the circumstances of that case I said that it led me to have grave misgivings about the conduct of counsel in that case. What I said could be taken as a reflection upon counsel for that plaintiff. Since the Committee stage, I have had a private meeting with that counsel. He has shown me his notes and explained the case to me. He gave me his assurance that nothing he did was designed in any way to create a situation wherein the documents could later be made public for another purpose.
I fully accept that assurance. I told counsel that I would make this clear at this stage of the Bill at the first opportunity I had. So I unreservedly withdraw any reflection on the conduct of counsel and I regret that I should have dealt with the points I wished to make by causing a reflection upon him which I wholly accept as being unjustified.

§ Lord Sandford
My Lord, may I return to the matter of this amendment? I had always thought that the Labour Party were particularly keen to see access to private land increased. If that is so, could not the noble and learned Lord, Lord Elwyn-Jones, say as much and confirm that for those reasons and in this case this amendment in this Bill would be acceptable to the Labour Party? If he could say so, would the amendment therefore be the more acceptable to my noble and learned friend on the Woolsack?

§ Lord Elwyn-Jones
My Lords, I am invited to intervene in this controversy. I venture to think that it is an additional controversial matter outwith the general purposes of the Bill. I sympathise with the observations of the noble and learned Lord the Lord Chancellor to try to limit, so far as we reasonably can, the content of what goes on under what is admittedly a large umbrella.

§ Lord Hylton
My Lords, before the noble Lord Lord Stanley, replies, may I say that I feel that this subject is one which needs the very greatest possible care. I say that as being associated with the ownership of a labyrinth of underground caves, not very far away from a large, metropolitan area. I hope that if the law is to be changed we shall make the greatest effort to get it absolutely right.

§ Lord Stanley of Alderley
My Lords, I thank noble Lords for the remarks that they have made on this amendment. I accept that it has become a controversial matter though, in my opinion there was no need for it to be so. I find it rather difficult to say and if I use the word, "idle" I hope that my noble and learned friend—when I refer to his department as possibly being idle—will treat it in the way that it is treated in the army—in a fairly good humoured way. What happened was that there was a conference nearly a year ago to try to discuss these matters, and the three main parties which I have mentioned—the Central Council and the two main organisations that are responsible for or have affairs with land—agreed. Since then it seems to me that not a great deal was done until these last three or four weeks or so, but perhaps I am being unfair. All I am asking my noble friend, which I think I have got from him, is that he will keep a watching brief on this matter in case things do go wrong. So far they have not gone wrong, I am glad to say, and he will make some progress, which obviously he has, by the large detail he gave to me, in which case I beg leave to withdraw this amendment.