HL Deb 08 November 1983 vol 444 cc696-708

3.5 p.m.

Report received.

Clause 1 [Duty of occupier to persons other than his Visitors]:

The Lord Chancellor (Lord Hailsham of Saint Marylebone) moved Amendment No. 1:

Page 2, leave out line 5 and insert ("to believe that it exists;")

The noble and learned Lord said: My Lords, I do not think that I need go into this amendment at length in moving it. The House will remember that at Committee there were two amendments before the Committee, Nos. 1 and 3; one in the name of, I think, my noble friend Lord Stanley of Alderley and one in my own name. They both were intended to achieve the same object. I moved successfully my own Amendment No. 3 into the Bill, but at the same time I expressed some uneasiness as to whether we had chosen the ideal form of words and, so in accordance with my undertaking. I referred it back to the draftsman, and this amendment is the result. It achieves the same object and therefore I need not expatiate on its merits. My Lords, I beg to move.

On Question, amendment agreed to.

Lord Campbell of Alloway moved Amendment No. 2:

Page 2, line 28, at end insert— ("( ) No duty other than the duty of common humanity is owed by virtue of this section by an occupier of premises to any person who is on those premises having committed or with the intention of committing there a criminal offence of which that person is capable of being convicted unless the occupier deliberately or recklessly causes or fails to abate the danger concerned.").

The noble Lord said: My Lords, although this amendment has the support of the National Farmers' Union and the Country Landowners' Association, I have no interest to declare other than the professional interest of an ordinary common lawyer who seeks to preserve existing principles of common law in the proposed codification. The purpose of this amendment is to claim express statutory recognition for the distinction between the duty owed under common law by an occupier to someone on his land who is trespassing with a nefarious intent, on the one hand, and to someone who trespasses by inadvertence or to take a short cut as a matter of convenience, on the other.

It is much to be doubted whether this amendment imports any moral duty which does not already exist under common law. My noble and learned friend the Lord Chancellor has the categoric assurance that those who have put their names to this amendment do not stand for the proposition that an occupier owes no duty to a man who steals apples on his land, irrespective of whether or not the original entry was for such purpose.

The duty owed to a trespasser with nefarious intent was not before the Appellate Committee of your Lordships' House for judicial determination in the case of Herrington. That, as your Lordships know, was one of those child trespass cases either to take a short cut or to play—in fact, this one was to take a short cut—decided in the wake of the Addie case, which was another such case. But certain judicial observations in Herrington gave clear support to the existence of the distinction which is claimed to exist—and, with respect, I claim it exists—between, on the one hand, the basic duty in humanity not to harm deliberately or recklessly a trespasser with nefarious intent, and, on the other hand, the duty to those who trespass by inadvertence, to take a short cut, to play, to take a picnic, to take their purposes of pleasure, or be it what it may. Indeed, when the noble and learned Lord, Lord Morris of Borth-y-Gest, said in Herrington, No-one would suggest that every trespasser should he treated as a neighbour", did he not give express recognition to the distinction at common law between these two types of legal duty which I claim exist today?

If the object of the Bill is to provide statutory rules to resolve points of doubt or difficulty arising out of Herrington—and such appears to be the case from the Explanatory Memorandum—then is it appropriate to treat judicial observations as to the basic duty of humanity as giving rise to any doubt or difficulty? The existence of the basic duty was, according to the noble and learned Lord, Lord Reid, in Herrington, laid down in the Addie case, although of course it no doubt evolved from the mantrap and spring-gun cases. When the noble and learned Lord, Lord Pearson, said in Herrington that, the rule in the Addie case has been rendered obsolete by changes in physical and social conditions", he was adverting clearly to the issue which was before him for determination, not to the situation of nefarious trespass. Surely no doubt or difficulty could arise in that context.

Can it he doubted, in the light of the observations in Herrington, that today there are two categories of duty at common law? Is there any practical difficulty in retaining such distinction? I know of none. Indeed, the merger of the two duties into a single duty as is, I gather, the proposal could itself give rise to the serious practical difficulties to which my noble friend Lord Renton adverted at the Committee stage. But this is no occasion for advocacy or for repetition.

If there are two categories of duty importing two standards of care, can it be right to ignore the warning of the noble and learned Lord, Lord Morris of Borth-y-Gest, and create a single duty? If each standard of care is set by different and definable circumstances, can it be right to invoke Clause 1(4) to import a single duty from what is reasonable in all the circumstances? Is it appropriate that in effect the duty should be created from the circumstances without regard to the existing distinction between standards? How (if I may respectfully ask) may the interests of legal certainty be better served in practice by implementation of a new single statutory standard? Is it not appropriate that as part of the due process of codification of this branch of the law with which your Lordships are instantly concerned the distinction between these two categories of duty should be expressly recognised in this Bill? And is this, with respect, not right as a matter of principle? I beg to move.

Lord Stanley of Alderley

My Lords, this amendment is similar to the amendment which I moved in Committee. I support it again for two reasons. The first is because I fear that during Committee my little legal drafting problems assumed a major role as opposed to the minor one that I hoped they would. The point I failed to make, but which my noble friend Lord Campbell of Alloway has made so well today, is that I am firmly of the opinion that the farmer owes less of a responsibiltiy to the criminal trespasser than to the innocent one. I am not at all sure that the words of the amendment achieve that objective, but I hope that my noble and learned friend will be able to accept the principle that there should be a difference: a less onerous duty on me, as the occupier of a property, to the criminal than to the innocent trespasser.

Secondly, I support the amendment because I wish to draw your Lordships' attention to a remark made last month by the chairman of the Countryside Commission. During an interview the chairman of the Countryside Commission stated that probably within the next decade or so there would be a law giving free access to all farmland. If that is to be the case, it is vitally important that attention should be given to this problem. The time to give it that attention, I believe, is now.

Lord Mishcon

My Lords, there is a simple problem before the House. Whenever I say that, I find that I have oversimplified something which is complex and that I have not understood its complexity. However, on this occasion it seems to me that the issue is purely and simply this: can you properly define circumstances in which you can split the duty, as the noble Lord, Lord Campbell of Alloway, seeks to do?

If one looks at the noble Lord's amendment, supported by the noble Lord, Lord Stanley of Alderley, one immediately sees where the difficulties lie. I must say with great respect that I am afraid I do not believe that these vital matters which one would have to consider in such a distinction are answered by the amendment. It may be that it is very difficult to answer them at all.

First, I turn to the duty which will appear in the Bill if the amendment is carried; namely, the duty of common humanity. I do not know whether that is a matter of law for the judge to decide, or whether we should have to import once again into our civil jurisdiction a jury to decide what is common humanity, or whether ecclesiastical advice would have to be given in any case as to what is common humanity. But let us take it for granted that that problem is overcome by omitting the words "the duty of common humanity", thus leaving oneself with the rest of the amendment, which deals with somebody who has committed a criminal offence or who enters upon premises presumably—and I quote the words of the amendment— with the intention of committing there a criminal offence". I remember so well the graphic description which the noble and learned Lord the Lord Chancellor gave of a certain set of circumstances. It was as follows. He envisaged any one of your Lordships peering out of his window in the early hours of the morning and finding somebody ascending a ladder which had been taken, presumably, from the greenhouse, or wherever, of the establishment that was being invaded.

The noble and learned Lord said that if one happened to know that the fourth rung of the ladder was a little weak and that the person concerned had ascended to the third rung, he did not think that the law placed an obligation upon any one of your Lordships in those circumstances to call out of the window, "Beware of the fourth rung which you are now about to tread". That was the engaging way in which the noble and learned Lord dealt with a serious subject. He has a happy knack of putting a light touch upon serious matters of law which otherwise might bore your Lordships' House.

May I invite your Lordships, as I tried to do at Committee stage, to see where the difficulty lies? That person ascending the rungs might be the locum for the window cleaner who usually came there but who was on holiday. The locum may have such a feeling of duty that he has thought it necessary to carry out his window cleaning in the early hours of the morning. In exactly the same case as that which the noble and learned Lord envisaged, do I, looking out of my window, weigh up the circumstances in which the gentleman concerned is on that ladder and say, "Ah, he has the intention of committing a criminal offence, or he has already done so"?

We have a vital principle in our law, which is that questions of whether or not a criminal offence has been committed are tested by evidence. Then, explanations can be given, and if the balance of evidence is in favour of the accused and one has not proved the intention beyond any reasonable doubt, the person accused is entitled to an acquittal. It is an extraordinary situation if all this has to be weighed up while one is looking out of one's window on an occasion such as that envisaged by the noble and learned Lord the Lord Chancellor.

If the noble and learned Lord will forgive me, I will again paraphrase his remarks (because nobody could ever quote him). He spoke, too, in terms of someone who, having entered a property perfectly innocently to start with, then saw a few apples hanging rather temptingly from a tree, and took them. Because that is a criminal offence—the person concerned being no longer under the prescribed age, he is capable of committing an offence—does it mean that this amendment can now be brought into operation so that it is only a question of recklessness, or whatever are the words used in this amendment, which would bring down liability on the owner of the land?

I am afraid that this just does not work. In those circumstances, although I can well understand some of the apprehensions of those who are behind this amendment I hope that your Lordships will not support it.

3.23 p.m.

The Lord Chancellor

My Lords, I desire to speak with the utmost respect to the amendment of my noble friend Lord Campbell of Alloway in view of the vast sources of legal knowledge at his command. But I venture to repeat something that I said in Committee, which is really a very short answer to the problems with which we are confronted. If one looks at Clause 1(3) and (4) of the Bill as it stands, everything that is good in the amendment is already there; and if there is anything in the amendment which is not in Clause 1(3) and (4), it is not good.

The duty arises when an occupier of premises owes a duty to another (not being his visitor) if he is aware of the danger or has reasonable grounds for being aware of it: knows or has reasonable grounds to believe, in accordance with the terms of my first amendment, that the other is in the vicinity of the danger or that he may come into the vicinity of the danger (in either case, whether the other has lawful authority for being in that vicinity or not); and the risk is one against which, in all the circumstances of the case, he may reasonably be expected to offer [the other] some protection". That is when the duty arises. What is wrong with that? Subsection (4) goes on to say that, the duty is to take such care as is reasonable in all the circumstances of the case to see that [the other person] does not suffer injury on the premises by reason of the danger concerned". What could be simpler and what could be more reasonable than that?

My noble friend Lord Campbell of Alloway said that he was trying to restore the common law by this amendment. I speak in the presence of an array of lawyers on more Benches than one, but, really, this amendment has no relation to the common law at all. It is not limited to trespassers, and therefore can apply to licensees. The idea of a criminal trespass is foreign to common law anyway; and the test of whether one is entitled to take advantage of the clause depends, according to the amendment, on whether there is criminal intent or whether the person has committed a criminal offence.

I will return, if I may, to the speech of my noble friend Lord Stanley of Alderley. The fact is, of course, that one does owe a different duty to criminals on one's premises to that which one owes to licensees. But that is one of the circumstances of the case which determines whether or not one's conduct is reasonable. Reasonableness is a conception known to the common law; that is why it is in the Bill. Of course it is true that one owes a different kind of duty to somebody who has committed a serious crime than to one who has not, but that is something on which the tribunal of fact will have to decide for itself. The possible circumstances which we illustrated by a number of half humorous examples indicated the wide range of circumstances which can exist under this clause. I accept, of course, that a different duty is owed in each case according to the difference in the circumstances.

I come now to what seems to me to be a very strong case for the Bill as it stands. I have tried to explain what it says, and I think it is right. What my noble friend Lord Campbell of Alloway did not mention, and what ought to have been mentioned, is that the Bill as it stands has been the law of Scotland for no fewer than 23 years and has worked perfectly well. I have the greatest possible respect for the National Farmers' Union; I myself was a member of it for 14 years. I think I was a member of the Country Landowners' Association, too, when I had country land to own. But the country landowners of England and the farmers of England are not entitled to greater protection than has been found for 23 years to be sufficient for the farmers of Scotland.

The reason why the Scottish statute was enacted in 1960 was exactly why we have introduced this statute in the same terms, so far as relevant, in England in 1983. The reason was that in Addie v. Dumbreck the House of Lords, with my father sitting on the Woolsack, tried to categorise people in exactly the same way as my noble friend is trying to categorise them now, only he chose trespassers (not criminal trespassers), invitees, licensees and those present under a contract. These are, of course, different circumstances, but it was found in practice and in the very case to which my noble friend Lord Campbell of Alloway referred—the case of Herrington—that that really will not do. The point is that the very reason we are introducing this Bill is the very reason why, in 1960, our predecessors introduced the Scottish Bill. We have done so in the same words, which have caused absolutely not trouble at all.

I now come to the actual wording of my noble friend's amendment. It is all very well to quote—but he did not, I am afraid, correctly quote—the various opinions of your Lordships' Appellate Committee in Herrington. I ask your Lordships, first of all, to consider what on earth is meant by "the duty of common humanity"? "Reasonable care in all the circumstances" is something well known to the law. I know it well; all common lawyers have operated it a hundred times, but have we ever founded a cause of action on "common humanity"? One really must not take the obiter dicta of Law Lords or other judges when they are expounding policy and try to insert them into a statute, because that is not what such words are intended for. What the late Lord Morris of Borth-y-Gest said was, "Such steps as common sense or common humanity would dictate". But it is the "common sense" which my noble friend has omitted in his definition of what the proposed duty should be. I think perhaps that explains what Lord Morris of Borth-y-Gest meant. I do not see, when delivering judgment and expounding judicial policy, why, when you say "common sense and common humanity", you are not really saying "reasonable care". I think that is really all there is to it. Other noble Lords said various things which gave rise to various different views as to what they meant; that does sometimes happen even in the best conducted Appellate Committees.

Now it is suggested that the test of who is owed the duty is not whether he is a trespasser or not. There is no mention of trespass in the amendment. He can be a licensee. The test is whether he has committed a crime. Then there is a very modified duty—which I think would not work at all—which means that the occupier has to have the duty of, common humanity … unless the occupier deliberately or recklessly causes or fails to abate the danger concerned". I do not know what noble Lords think about that, but I think it is wholly unworkable.

Let me give one or two examples, and let me say at once that I am not being flippant about what I accept to be a serious subject. Let us assume, for example, that going on to the farmer's land to pick bluebells there is a lady and her little toddler walking beside her. While they are picking, the little toddler and the lady both, deliberately if you like, choose, in addition to bluebells to pick or to uproot a plant protected by Schedule 8 (if that is the right schedule) to the Wildlife and Countryside Act. That is a crime. The little toddler cannot be convicted, and therefore comes within the protection of the amendment, because she is below the requisite age at which you can attract criminal responsibility. The mother can be convicted of the crime and therefore the amendment applies to her. There emerges on the woodside a ferocious bull, which, by the negligence of the farmer butts them both. The little toddler recovers damages but the wicked criminal mother does not. One wonders why.

Let us consider another story. There is a Marks and Spencer's store—I give it as an example without any desire to cast aspersions on Marks and Spencer, a most reputable establishment—into which the public are admitted in order to buy the goods. Three persons go into that store, three persons of full age. They are all for that matter licensees because they are customers of the shop. One of them steals a tube of toothpaste; he has committed a crime on the premises of Marks and Spencer. Another one has the intention of committing a crime, and therefore one would think would come within the terms of the amendment; but he has not disclosed this intention to anybody, even his wife, so nobody can possibly say that he is not a mere licensee who is there perfectly innocently. This is wholly unworkable of course. The third one has bought a tube of toothpaste perfectly honourably. Owing to the negligence of the managers of the store, an ornamental pineapple descends upon the heads of these three people causing each of them equal damage. The criminal who has stolen the tube of toothpaste is not entitled to recover. The person who intended to commit the crime but has not yet done so will recover, because his intention cannot be proved. The third one, the innocent licensee can recover.

Let us take another example. Let us take a nice garden to which the public are admitted, say, Sissinghurst—and again I mean no aspersions on the owners of that famous garden. This particular day is a charity day and the public have to pay to enter in order to subscribe to the charity. Three persons go into the garden; two have paid for entrance and so they are there under contract, one of whom, however, steals a rose, which, it being a cultivated garden, he may not do according to the criminal law. The third has climbed over the wall and is therefore a trespasser. We will assume that each suffers damage owing to the negligence of the servant of the proprietor. Again, three different results obtain. The stealer of the rose is in a bad position, because she is caught by the amendment. The second one, the innocent one, recovers damages. The third one, the trespasser, probably recovers, too, unless one can prove criminal intent in the way in which he entered over the wall. This leads to a complete nonsense. I ask my noble friend, why cannot we go straight over to the Scottish law which has worked perfectly well for 23 years, instead of getting ourselves tied up into this horrible cat's cradle?

Lord Campbell of Alloway

My Lords, as always, I am extremely indebted and grateful to my noble and learned friend the Lord Chancellor for the care and courtesy with which he has dealt with the speeches in support of this amendment. I shall not take too much of your Lordships' time. The problem of the ferocious bull, the tube of toothpaste in Marks and Spencer and the fantasies of Sissinghurst do in fact dissolve if one applies the very simple test which was adopted by recognition, not only by Lord Morris of Borth-y-Gest but also by the noble and learned Lord, Lord Wilberforce, in the Herrington case. There really is no problem in this; and, in submission, there is really no injustice. This of course is not the time or place for me to argue with my noble and learned friend the Lord Chancellor, whose experience in matters of law far exceeds mine. With regard to the problem of common humanity, related of course to common sense, with respect, there was no serious omission in the reference to common sense because it was common sense related to common humanity, and that is the duty, the other duty which Lord Morris mentioned in the case of Herrington. To equate that with a duty of reasonable care, with the utmost respect, is not justifiable and certainly such was not the intention of the movers and supporters of this amendment.

The noble Lord, Lord Mishcon, says that in a sense I have split the duty. With respect, I have not and could not have done so unless I was in practice North of the Border, which I am not. South of the Border it has already been split and the noble and learned Lords in your Lordships' Appellate Committee in Herrington recognised that it had been split.

In conclusion, the permutations and combinations of the ladder at the bedroom window referred to by my noble and learned friend the Lord Chancellor and as elaborated on by the noble Lord, Lord Mishcon, although vastly entertaining—no doubt more so in practice than in theory—do not really carry the matter very much further. There is no problem with the stolen apples of the noble and learned Lord, Lord Edmund-Davies, because the common humanity duty, recognised in Herrington. only comes into play once the criminal intent to steal has been formed, and that raises no problem in the courts.

So, as my noble and learned friend the Lord Chancellor says, if one refers to Clause 1(3) and Clause 1(4), in reference to what is good and what is not good, the view is taken that the merits of this amendment do not even have those of a curate's egg, which might be good in parts.

This is a probing amendment. In those circumstances, as the matter has received the attention of your Lordships' House, for which I am grateful, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Lord Chancellor moved Amendment No. 3:

Page 2, line 35, at end insert I" "highway" means any part of a highway other than a ferry or waterway:")

The noble and learned Lord said: My Lords, This is a purely technical amendment. The Bill as it stands includes the word "highway" and it has been put to me by an expert that that term is in itself ambiguous. It may include a waterway or it may not. It was no part of the Law Commission's report that waterways should be excluded from the ambit of Clause 1, together with highways commonly so-called, and the purpose of the amendment is to make this clear.

On Question, amendment agreed to.

Clause 2 [Visitors using premises for recreation: modification of Unfair Contract Terms Act 1977]:

3.43 p.m.

Lord Stanley of Alderley moved Amendment No. 4:

Page 3, line 4, leave out from ("occupier") to end of line 6 and insert (" (whether he makes a charge for such access or not) unless the purposes concerned fall within commercial purposes for which he uses the premises".").

The noble Lord said: My Lords, my noble and learned friend the Lord Chancellor said in Committee that Clause 2 is a concession to occupiers and I thanked him then for it. But the clause, and this amendment in particular, is for the benefit of those who want to use our land for recreation. Unless occupiers are certain of the risks that they are taking when they allow people onto their land they will be reluctant to do so. Hence, when my noble and learned friend said that he thought a charge, however small, could make the farmer liable under the Unfair Contract Terms Act 1977 I was not happy and I am again asking my noble and learned friend to try to make the case cut and dried. I therefore submit this amendment for his attention.

I have taken note of my noble and learned friend's criticism of the words "a substantial business purpose" and substituted "commercial purposes". I hope that this will separate the duty of those carrying on recreation as a commercial enterprise from those making a small charge for access or recreation in order to try to recover some of the costs.

There is a threshold to everyone's charity, and unless occupiers who occasionally open their gardens, grounds or houses at inconvenience and cost to themselves can he helped by categorically exempting them, in this clause, from the Unfair Contract Terms Act 1977, they may not perform this public service of providing recreation and access. I beg to move.

The Earl of Caithness

My Lords, in rising to support my noble friend on this amendment I think it is important to clarify at this stage the situation with regard to an occupier making a charge. If, for example, he was to make a charge of 50p to maintain a fence round a pond in which he has stocked some fish so that the local angling club can utilise it, he appears to come under the Unfair Contract Terms Act rather than the proposed legislation. I should also be grateful if my noble and learned friend the Lord Chancellor would clarify the position with regard to making a charge for a registered charity. Does that put a different light on the picture from making a charge for one's own personal pocket?

Lord Mishcon

My Lords, I ventured to put an amendment at Committee stage having frankly stated that it was meant to be a probing one. I realised at the time—and I endeavoured to be frank with the Committee—that my work was not one of art in its wording; I said that I realised the difficulty but that I hoped that on Report the noble and learned Lord would be able to bring a definition before the House of "business purposes" or at least clarify the situation where a charge was made for entry onto land where the proprietor was merely, in one case, endeavouring to cover some possibly minor part of his expenses or, in the other case, making quite a large profit out of the entry fee.

With the noble and learned Lord's usual courtesy he said that he would consider what I had said and subsequently I received a letter from him. I only intend to quote the last sentence of it which reads: My own further reflection and the advice I have received thus support my initial reaction that an amendment on these lines would be both unnecessary and undesirable and I am writing simply to warn you that I do not intend to table one to the Report stage. I am not going to pretend that I received that letter and read it with the utmost joy, but at least I read it with appreciation of the fact that this courtesy had been extended to me.

The adviser of any person owning land who wishes to make it available for educational or recreational purposes remains in a difficulty. I say this with the greatest of respect. I am not convinced by the argument that merely because "business purposes" is not defined in the major Act—the Unfair Contract Terms Act, as it is called—is an answer for not trying to define it when one is dealing with limited purposes such as this: namely, permitting entry onto land for educational or recreational purposes. I say that because one is dealing with something quite specific where one can say that payment, for example, of an entry charge does not make it a business purpose, or that it does. That clarification is necessary. I repeat, no adviser could be certain of his ground where an entry charge was made.

The noble and learned Lord has expanded upon the term "reasonable" in dealing with the other amendment. To say that the courts are reasonable and that this matter would obviously be decided by the courts, and no doubt in the passage of time we should have precedents on which we could rely, is not much comfort to the person who does not wish to go to court on a matter of this kind even to get some sort of declaration—if he could—as to what the law really is.

I repeat what I said at Committee stage. When we legislate it is our job, where we can, to be precise and to guide people who will need guidance in view of the terms of this Bill. I do not think at the moment we have carried out that duty. I earnestly hope that the noble and learned Lord will repent from the letter that he sent me and will decide after all that some more guidance than we have at present is necesary.

The Lord Chancellor

My Lords, I am afraid I am not in a very repentant mood at the moment. As I promised the noble Lord, Lord Mishcon, I put his remarks to the parliamentary draftsman. Oddly enough, he said that what I had said in reply before was exactly right. I was rather surprised at that. They are seldom as complimentary as that to their Ministers. But in a sense I think that my noble friends Lord Stanley of Alderley and Lord Caithness have not appreciated the wood for the trees. May I try again to explain to them the circumference of the wood?

The Bill is designed to ensure that people incur some duty to those who are on their land. We have talked about that and I shall not go over the ground again. The question arises, supposing somebody says to a person who wishes to come on the land, "Yes, you may come on but only if you pay me 50p for entering", what is the position there? Prima facie that comes within the terms of the Unfair Contract Terms Act 1977 passed by the previous Administration, of which the noble Lord, Lord Mishcon, was such a distinguished supporter. I shall not go into the details of it. If I did, I should be reading out a lot of legal words. Broadly speaking, if it is a business purpose, the burden of proof is on the person who seeks to insert a clause excluding liability to show that the exclusion of liability is reasonable in the circumstances. I think that that Act was passed with the approval of the entire House. Speaking then from the Opposition Bench, I gave it my warm-hearted approval, as did my noble and learned friend Lord Denning from the Cross-Benches. I think that it was passed without a dissentient voice.

The question is, how does one marry the Unfair Contract Terms Act to the Occupiers' Liability Act (when it becomes law, as I trust it will) when, as my noble friend Lord Stanley of Alderley rightly says, somebody wants to use his land for recreational or educational purposes? At an earlier stage, I accepted his contention that the Unfair Contract Terms Act should not apply in such a case. "Recreational" was always in the Bill; "educational" I accepted in Committee. It is done by Clause 2 of the Bill, but Clause 2 operates as an amendment to the Unfair Contract Terms Act 1977. It is an amendment of Section 1(3) of that Act. Therefore, before we can judge whether this is a sensible amendment, we must look to see whether it is sensible where it is proposed to substitute the words of the amendment where they occur in the Unfair Contract Terms Act.

Subsection 1(3) of that Act says: In the case of both contract and tort, sections 2 to 7 apply"— then there is an exception, which is irrelevant— only to business liability, that is liability for breach of obligations or duties arising—(a) from things done or to be done by a person in the course of a business (whether his own business or another's): or (b) from the occupation of premises used for business premises of the occupier". This Bill in Clause 2 says: At the end of section 1(3) of the Unfair Contract Terms Act 1977 (which defines the liability, called 'business liability, the exclusion or restriction of which is controlled by virtue of that Act) there is added—'but liability of an occupier of premises for breach of an obligation or duty towards a person obtaining access to the premises for recreational or educational purposes, being liability for loss or damage suffered by reason of the dangerous state of the premises, is not a business liability of the occupier unless granting that person such access for the purposes concerned falls within the business purposes of the occupier'. I speak first to the utterance of the noble Lord, Lord Mishcon, because that is not really relevant to the amendment—to which I shall be coming in a moment. It is quite wrong to have one definition of "business purpose" for this one subsection which does not apply to the rest of the Act of which it will be part if this section is put into it. That must be wrong. There has been no difficulty so far as I know in the six years since the Unfair Contract Terms Act was passed arising out of defining business purposes. I should have been surprised had there been.

I come now to the amendment of my two noble friends. This question of a charge for entry is a red herring. I have taken advice about it since, and I was right in what I said in Committee—namely, that it is a factor which is relevant in the context of the whole facts of the case but it is not conclusive either way. I give two perfectly likely examples, not designed to bore the House. When I was farming. there was an agricultural show at Heathfield. As far as I remember it was for farmers. A charge was levied at the gate to benefit the local branch of the Farmers' Union. Whether it was a business purpose I shall not discuss in this connection, but it was for the purpose of the show and not for the purpose of the farmer's farm. This is the only point I make.

If on the other hand one goes as a customer to Marks and Spencer, or to fill one's car with petrol, there is no charge for entry but quite clearly one's presence on the land is for a business purpose in each case. The charge for entry may be relevant but it is never conclusive by itself. One has to look at the circumstances of the case. It is ultimately a question of fact. The great vice of this amendment is that it tries to turn a question of fact into a question of law, which it cannot be made to be.

I go now to the second part of the amendment. My noble friend Lord Stanley of Alderley then introduces the phrase: commercial purposes for which he uses the premises". That is wholly inappropriate in a section which revolves entirely in the Unfair Contract Terms Act on the phrases "business purpose" and "business liability". When an Act of Parliament—and we are now talking about the effect on the Unfair Contract Terms Act—uses different words within the same section, it is usually supposed by the courts that different things are meant by different phrases. It will be quite certain that if the phrase "commercial purposes" were to be legislated into the Unfair Contract Terms Act as a result of my noble friends' amendment, instead of the words "business purposes'' which are in the Bill as it stands, the courts would try to give the phrase a different meaning. Thus, I suppose, they would try to draw a distinction between commercial purposes and farming purposes, commercial purposes and industrial purposes—factories and so forth—which is obviously not what my noble friends intend.

I say quite seriously to the three noble Lords who have spoken that I have gone into this matter with very great care. absolutely conscientiously, without any kind of preconception that I am always right, or anything like that. I have been advised that I am right, and I still think that I am.

Lord Stanley of Alderley

My Lords, my noble and leaned friend says that he is not repentant, and I am not repentant. but I intend to continue to sin because the noble Lord, Lord Mishcon, left me as a layman with the impression that it would be dangerous, or he would advise me to be very careful. if I were to allow my premises to be used for recreation or access. I take the point made by my noble and learned friend about Marks and Spencer—who make no charge when I go in. though they probably take most of my money off me while I am there—that they are still liable under the Act. So it is not just my paying to go in.

Nevertheless, I am still worried by what the noble Lord, Lord Mishcon, says, and I am worried that if I make a charge for going on to the land for recreation all courts will take it into consideration and some might actually hold me liable under the 1977 Act. It is this point that I want cleared up. I am not happy. I am going to withdraw the amendment, but I cannot promise my noble and learned friend that he will not see more of it in perhaps two of three years' time. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

In the Title:

The Lord Chancellor moved Amendment No. 5:

Line 6, after ("recreational") insert ("or educational").

The noble and learned Lord said: My Lords, this amendment is mine, and it is purely technical. It follows on the amendment which I accepted from my noble friends in Committee, and it adds to the Title the word "educational" as it was in my noble friends' amendment. I beg to move.

On Question. amendment agreed to.