HL Deb 12 July 1983 vol 443 cc719-25

3.10 p.m.

The Lord Chancellor (Lord Hailsham of Saint Marylebone)

My Lords, I beg to move that this Bill be now read a second time. In the year 1928 when my father was first Lord Chancellor and King George V was on the Throne, your Lordships, in their judicial capacity, decided a case called Addle v. Dumbreck. It was a case concerning distressed liability of an occupier of premises to children. My father fondly—but as it turned out mistakenly—believed that the decision of your Lordships' House would still the controversy for ever. In the year 1957, the then Law Reform Committee proposed a little gem of a statute about law reform dealing with the liability of occupiers of premises to visitors. That remains the law but it did not settle for ever the question of liability to those who were not there by invitation or licence of the owner.

In the year 1971 when I first was Lord Chancellor and Her present Majesty was on the Throne your Lordships, in their judicial capacity, came to a decision which I will call by the name of Herrington and raised again the question of the liability of occupiers of premises to trespassers. They came to a unanimous decision but, like industrious mountaineers, they climbed the peak from opposite directions with the result that a number of doubtful and interesting questions arose. Following that decision I referred the matter to the Law Commission, which by that time had taken over some of the functions of the Law Reform Committee. Years passed and in 1976 the Law Commission delivered its report to the noble and learned Lord, Lord Elwyn-Jones, who was by that time Lord Chancellor. That report was overtaken but endorsed by the Pearson Commission. The first part of the Bill now endeavours to deal with the recommendations which were made by the Law Commission and the Pearson Commission.

Last year I was invited to find room for proposals on this aspect of the matter in the course of the Administration of Justice Bill. At that time I discouraged the noble Lord, Lord Stanley of Alderley, from pressing his amendments because Government consultations were in progress. I told him that I would try to devise a vehicle for him and devise it I have sought to do. I hope it will have round wheels and not wheels of the square variety, and that it will now go forward with acclamation and success.

The first object of the Bill is to carry out the Law Commission's response to the task I gave it arising out of the case of Herrington. I do not mention in any detail the provisions of Clause 1 which can be found beautifully drafted in the clause. But in case anyone thinks from my earlier words that this is to be a charter for trespassers I think that if they look at the clause they will find this is not so.

Clause 1 does not aim to destroy the existing law but follows the biblical injunction to fulfil it by combining in a single set of propositions the slightly different lines of argument by which the members of the Appellate Committee, who were concerned in Herrington's case, arrived at the same general conclusion.

There is a second point which I should now mention in connection with Clause 1. The new statutory duty propounded by the Law Commission is to apply not only to those who enter upon land without authority and thereby are technically trespassers, but also to a very large group of people who enter land without the consent of the owner but in exercise either of a private right of way or a right of public access conferred by statute under Section 60(1) of the National Parks and Access to the Countryside Act 1949. Access to the countryside is a theme to which I shall return later in connection with Clause 2. But I commend Clause 1 as a piece of uncontroversial law reform backed by the recommendations not only of the Law Commission but also of the Royal Commission on Civil Liability.

The second object of the Bill requires a little more explanation. It arises from a consequence which I believe to have been unintended of the Unfair Contract Terms Act which came into force, as your Lordships will recollect, on 1st February 1978. That was a Bill introduced by the noble and learned Lord, Lord Elwyn-Jones. It received a welcome from every quarter of the House. Indeed I welcomed it myself at the time from the Opposition Front Bench. It effected a much-needed change in the law by regulating the use of exclusion terms in commercial relationships, particularly when a term is to the advantage of the provider of the goods or services and to the prejudice of someone described in the Act as the consumer. As a rule the Act does not impinge on private transactions. But like most new shoes it has been discovered that it needs adjusting. The first five years' experience of the working of the Act has, as I have indicated, revealed one unintended side effect. It has caused an undesired and unintended reduction in access to the countryside of England and Wales, although not to Scotland with which we are not concerned this afternoon. I say "unintended" because there is nothing in the Law Commission's report which suggests that such a consequence was intended, and so far as I can ascertain there was no mention of any such consequence in Parliament.

The general purpose of Clause 2 is to tackle this undesirable side effect. The point arises in this way. The Unfair Contract Terms Act applies to land and premises, among other things, which are used for the purposes of a business. The result is that the power of a farmer, we will say, to restrict access to his land is necessarily involved in the Unfair Contract Terms Act. But many landowners and farmers own premises in which there is, for instance, a pothole—by which I mean something in which people go potholing, not one of the things which one finds in roads—or a mountain crag as we find, for instance, in Tunbridge Wells where rock climbers may desire to practise their art. Some landowners and farmers also own lakes or rivers which may contain dangers of one kind or another.

The undesired consequence is that they realise that they are carrying on a business on their land—it may be farming or some other use of the land—and they are caught by the Unfair Contract Terms Act if they give access to anybody to enjoy the countryside. That would be all right if it were for profit or in the course of their business or any other business. However if they simply want these people to enjoy themselves for nothing it is not in any true sense a business use of the land. The effect has been that they have excluded the public on occasions when they would have been quite willing to give access because they were afraid of attracting liability and were afraid also that they were unable to exclude liability under the Unfair Contract Terms Act.

The general purpose of Clause 2 is to tackle this undesirable and unintended side effect by a small amendment which will not affect the main thrust of the Unfair Contract Terms Act. The point arises in the following way. The rights of access to the countryside exist in two main classes. The first class consists in rights of way and rights of public access under the National Parks and Access to the Countryside Act 1949. These are rights of access which the landowner may not deny or restrict. On the other hand, as regards the safety of persons, the landowner owes no higher duty than he would owe to traspassers—which I have already dealt with under Clause 1 of the Bill.

Secondly, there are these rights of access, to which I have referred, which arise out of private agreements between the landowner and his visitors. These are the rights with which Clause 2 is concerned. The landowner owes such visitors the common duty of care under the Occupiers' Liability Act 1957; but that Act provides that he may restrict or exclude his civil liability to such visitors if he wishes to do so. The effect of the Unfair Contract Terms Act has been to regulate any such restriction or exclusion wherever the land in question has a business use. The effect is, as I have described it, that most of the countryside has a business use in either agriculture or forestry. and landowners have had to choose between, on the one hand, allowing access and running the risk of civil claims for breach of the common duty of care under the Act of 1957, and, on the other hand, refusing access altogether.

Over the past five years the tendency has been for access to be refused, to the great disappointment of those enthusiasts for outdoor pursuits whose interests are represented by the Central Council of Physical Recreation. The purpose of Clause 2 is to reverse this trend by enabling landowners to permit recreational access subject to terms which exclude liability for the safety of the premises. The worry about safety is a real one; land is often naturally dangerous, particularly when there is open water, crags or caves which provide recreation for various types of outside sport. Moreover, modern farming methods include the use of machinery and plant which are dangerous, too.

It is not the purpose of Clause 2 to give the business occupier of land carte blanche to exclude all liability. The proposed amendment to the Unfair Contract Terms Act is limited in two important respects. In the first place, the proposed restriction is confined to dangers arising out of the state of the premises: it does not, therefore, extent to activities which are carried on on the premises. Secondly, and more important, the proposed restriction does not apply to cases where access to the land is given as a matter of business. For instance, there is no case at all for excluding the operation of the Unfair Contract Terms Act to places like holiday camps, safari parks or bingo halls, any more than there is to any other kind of business. Clause 2 is intended to keep within the Unfair Contract Terms Act any terms restricting liability as regards business premises where recreational facilities are provided as part of a commercial proposition.

To sum up, the aim of Clause 2 is to enable the occupier to allow access to his land for recreational purposes on terms which restrict his civil liability wherever access is granted simply as a matter of neighbourliness or goodwill, but not where it is ganted in the way of business. It may be asked why the landowners should change their practice if the law is amended in the way I have indicated. Will they not continue to refuse access? I believe that there is good reason to think that they will not do so. The policy of refusing access has not kept all the enthusiasts away: determined mountaineers, pot-holers and other adventurous people contine to come on the land, but without permission. This is an unfortunate development. It is bad for the visitor, because the risks of serious injury are greater, and bad for the landowner, because he does not have control over the activities of trespassers and cannot advise them what they need to do for their own safety or to protect his own property from damage.

For these reasons, the objective of Clause 2 is one which I believe will be supported not only by the Central Council of Physical Recreation, who wish to see greater opportunities for outdoor recreation, but also by landowners, who wish to see access to their land put back on a proper legal footing. With that explanation, I beg to move that the Bill be now read a second time.

Moved, That the Bill he now read a second time.—(The Lord Chancellor.)

3.25 p.m.

Lord Mishcon

My Lords, I rise with the solemn determination that the two clauses which the noble and learned Lord has with such skill and clarity joined together should not by any Member of this Front Bench be put asunder. In that pious resolve, I am authorised to say, my noble and learned friend Lord Elwyn-Jones concurs. From that brief statement it will be seen that in principle the Second Reading of this Bill will certainly not be opposed from this side of the House. But there are certain matters for doubt, certain questions which arise in regard to the Bill, which I venture to put forward before your Lordships so that the noble and learned Lord, with his usual great capacity, can deal with them if he so wishes in his answering speech this afternoon, or possibly in his later consideration of the Bill itself.

As your Lordships have heard, Clause 1 of the Bill deals with the law of liability of occupiers of land to trespassers and those who go upon their land without the occupiers' knowledge but with lawful authority, such as (as the noble and learned Lord has pointed out) the users of a private or a public right of way. The noble and learned Lord is right. The present common law on the subject is complex and, to a degree, uncertain, and has to be gleaned from five long and learned judgments of Members of your Lordships' House sitting, as the noble and learned Lord has said, in their judicial capacity in the 1972 case of British Railways Board v. Herrington.

The Bill appears to follow the Law Commission' proposals by providing that an occupier of premises may discharge any duty in law which he may owe to a trespasser—and I am using that term in its broad sense, as reflected in Clause 1—by taking such steps as are reasonable in the circumstances of the care to give warning of any danger, or by taking adequate precautions to discourage danger. This sounds, and indeed is, fair enough; but we have to be extremely careful about what we are doing in the proposed legislation because the Bill expressly substitutes the law as it now pronounces it to be for the common law provisions which exist.

All sorts of occupiers are interested in this point, but it is the County Landowners' Association who have expressly made this point in a letter addressed to me and to other noble Lords. We have to be very careful that it is as clear as is the present common law in regard to trespassers who come on to the land for criminal purposes, the commonest of which would be burglars or poachers. Volenti non fit injuria is a maxim of our common law well known to lawyers. "If you voluntarily take a risk you cannot complain about an injury resulting from it", is a rough and ready translation. But there is also a maxim which clearly applies to the criminal trespasser (if I may so call him) and that is ex turpi causa non oritur action

Lord Elwyn-Jones

Hear, hear!

Lord Mishcon

My Lords, this, again, roughly translated—which my noble and learned friend, I am sure, was about to do for me—means, "no right of action stems from a wicked cause". These maxims, so beloved of lawyers, sometimes lead my profession into the pompous belief that the layman of necessity knows of them and understands them. If I may digress, there is a classic and, I think, lovely story ascribed to the last of the great Irish Serjeants, Serjeant Sullivan, who was undaunted by any court before whom he appeared. On this occasion he was appearing in the Court of Appeal for an appellant workman in a workman's injury case. Said one of the learned Lord Justices: "Has your client never heard of the maxim, 'Volenti non fit injuria'?"—to which came the immediate reply in lovely Irish tones: "My Lord, in the small village in Antrim from which my client comes, it forms the sole topic of conversation."

I will revert if I may to the matter which I was on: that is, the liability of the criminal trespasser. It is the second of the common law maxims to which I have referred that possibly does deserve a bit of examination because the sole reference to it is by inference from the wording of Clause 1(6). I am not going to read that subsection but I will pose a question. Is the noble and learned Lord the Lord Chancellor satisfied beyond doubt that this subsection fully covers that second maxim of our common law? Is he similarly satisfied that the liability of occupiers of land to children trespassers is fully covered as it was in the decided cases of common law and is not in any way watered down? The noble and learned Lord referred in an affectionate recollection to his late father, who was indeed a distinguished predecessor of a distinguished son; and I have no doubt at all that he of all people will be interested to make sure that the liability towards children trespassers is in no way watered down, as I have said, in this Bill from the position that it had at common law.

I turn now to Clause 2. I have to take it, although I otherwise would have queried it, that in the law of liability that is the major factor in discouraging land owners from allowing people to come on to their land for residential purposes. For my own part, I would frankly have thought it had much to do with the selfish and messy behaviour of a minority—but unfortunately not an inconsiderable minority—of those who go on to land for recreational purposes and especially for a picnic. But I am more than impressed, as the noble and learned Lord pointed out, by the emphatic support which so many worthy organisations connected with leisure and recreation, including the Central Council of Physical Recreation and all its associated organisations, have expressed for an amendment of the Unfair Contract Terms Act 1977 which would allow occupiers of land to get exemption from liability in respect of injury and even death, provided that the terms and conditions of the exemption claimed are reasonable. I therefore cannot bring myself to object to the spirit of Clause 2.

However, what I have to do is to bring to the attention of the House the reservations of The Law Society in regard to the present clause, and I do it without necessarily support, but merely because I think it should be considered. I will read, if I may, quite shortly an extract from a letter which The Law Society has sent me on this subject: the Bill's provisions will only apply when the granting of access does not fall within the 'business purposes' of the occupier. When it does, the 1977 Act will continue to apply unchanged. We suggest that this is unsatisfactory. First, it will mean that a liability stricter than that thought desirable by the Law Commission will continue to apply to a person granting access for recreational purposes, when the granting of such access falls within his business purposes. In our view, it would have been preferable to adopt the Law Commission's approach and to have allowed all occupiers of premises used for business purposes (the 1977 Act does not apply to premises which are not used for business purposes) to exclude or limit liability, subject to the general reasonableness test. This approach would also have met our second objection to the Bill. We feel that the adoption of the Clause 2 device of deeming liability not to he a business liability when the granting of access does not fall within the 'business purposes' of the occupier is likely to prove a source of uncertainty and litigation. In particular, we doubt whether it will always be possible to distinguish clearly the dividing line between an occupier's 'business' and 'non-business' purposes. Finally, I realise that so far as Northern Ireland is concerned it will he for their own Assembly to deal with legislation of this kind. I observe that the Scots have opted out of this Bill, and I am always wary when Scotsmen do things. It usually is for a good reason that deserves respect. I understand the reason for their opting out of Clause 1 because I am told that clause corresponds to the law in Scotland as it now is; but they have consciously and deliberately opted out of Clause 2 and have decided for their part not to amend their corresponding provision in the Scottish version of the Unfair Contract Terms Act, which is Section 16(1). Are we to hear from the noble and learned Lord the Lord Advocate or from the noble and learned Lord the Lord Chancellor giving the reasons why our Scots brethren have come to this conclusion? One would have thought there would have been a great benefit if the law on this subject were the same on both sides of the Border, as otherwise unjust and indeed misleading anomalies on precisely the same facts can be created.

I have put before your Lordships—I hope at not too wearisome length—some queries and doubts that arise on the Bill itself; but, as I said before, in its general terms it has the support of my noble friends and myself and I certainly commend a Second Reading to your Lordships.