Occupiers' Liability Bill [H.L.] (Hansard, 17 November 1983)

§ The Lord Chancellor (Lord Hailsham of Saint Marylebone)
My Lords, I have it in command from Her Majesty the Queen and His Royal Highness the Prince of Wales that they, having been informed of the purport of the Occupiers' Liability Bill, have consented to place their prerogative and interest so far as they are concerned on behalf of the Crown, the Duchy of Lancaster and the Duchy of Cornwall at the disposal of Parliament for the purposes of the Bill.
I move that the Bill be now read a third time. In doing so, I should like to thank all the noble Lords who at one time or another have played a part in the discussion of the Bill. It is a useful little piece of law reform which has been achieved through the good work of the English Law Commission. The Bill has as its principal purpose to redefine the duty to trespassers. I also have to thank noble Lords for one or two improvements both before and during the passage of the Bill in relieving occupiers in suitable cases from the Unfair Contract Terms Act. I repeat my gratitude to them all. My Lords, I beg to move.

§ Lord Mishcon
My Lords, I think that those of your Lordships who took part in the discussions on this Bill should like to reciprocate the warmness of the noble and learned Lord in expressing his gratitude to those of us who tried to make intelligent contributions and say how much we all appreciated the great courtesy that he extended to us in listening to our arguments and giving the impression that he thought that they were worthy of his consideration.
I have only one comment. The noble and learned Lord is so right when he says that this is a useful little bit of legislation. One hopes that it will lead to more landowners according hospitality to those who wish to go upon their land for recreational and educational purposes. I look straight at the noble Lord, Lord Mottistone, when I mention the words "and educational". It was an amendment that had our 1379 support and indeed the concurrence of the noble and learned Lord in the end.
I go from that to only one statement of disappointment. I was completely unable, as were other noble and learned Lords who participated in the discussion, to persuade the noble and learned Lord the Lord Chancellor that it might be for the benefit of posterity, and certainly for the benefit of the courts, if the phrase "business purposes" was properly defined in the Bill. He gave cogent arguments as to why that should not take place. I hope that some of us also gave cogent arguments as to why we thought that help ought to be given by a legislative assembly such as ours for the guidance of courts, but more particularly so that we could advise clients who are reluctant to go to court for directions or declarations. I repeat that the noble and learned Lord heard our arguments and resisted them with his usual powers of persuasiveness and clarity. I merely therefore end by saying that, while expressing disappointment at that matter, we are all most appreciative of the way that he dealt with the Bill.

§ Lord Renton
My Lords, I, too, should like to congratulate my noble and learned friend the Lord Chancellor on the introduction and the passage of this Bill and to thank him for the way in which he handled our amendments. As the noble Lord, Lord Mishcon, said, this Bill will be of great help and a great improvement. It should in general lead to better relations between the public and occupiers in the public's obtaining access to the countryside.
However, there is still in the Bill one impediment to that desirable process. I hope that my noble and learned friend will give further thought to the content of Clause 2 of the Bill before it reaches another place and perhaps inspire the removal of a difficulty which has undoubtedly arisen. I do not go along with the noble Lord, Lord Mishcon, in saying that the terms "business liability" and "business purposes" need to be elaborately defined. But when a farmer—whose business after all is simply that of farming—grants access to people to go on to his land so that they may enjoy it for some limited purpose, that should not, and cannot, be regarded as part of his farming activity. Yet under the Bill as it stands he will incur liability which he should not incur. Therefore I feel that a serious point has still to be dealt with, and I implore my noble and learned friend to see that it is dealt with in another place.

The Earl of Caithness
My Lords, I should also like to express thanks on behalf of my noble friend Lord Stanley of Alderley, who regrettably cannot be here, and myself for the very kind help that my noble and learned friend the Lord Chancellor has given to us during the passage of this Bill. He said on Second Reading that the Bill had roundwheels; at least he hoped it had round wheels. I believe they are a bit rounder than they were, though I think that two wobble. I am very concerned, and despite his help, my advice to occupiers of land is still going to be, "Be careful when you allow somebody on the land because it is not clear whether it is your business or not and whether it can be assessed as your business or not". I 1380 appreciate that there is the obvious example when the charge is sixpence. If it happens to be £5 and a number of people are involved, then the Inland Revenue may very well say it is a business. As an adviser to occupiers, I should find it extremely necessary still to draw that line; but I should like to thank my noble and learned friend for his help. I hope that he will now look at this aspect.

§ Lord Mottistone
My Lords, I should also like very briefly to add my unqualified thanks to my noble and learned friend for having accepted the amendment that I had the privilege to move on behalf of industry.

§ The Lord Chancellor
My Lords, I am very grateful to all the noble Lords who have spoken. I am not now very receptive to their anxieties. I wrote to my noble friend Lord Caithness making the matter, as I thought, crystal clear; but evidently I did not succeed then, so I doubt whether I shall succeed on my feet now.
I think it is obvious, if I may say so to my noble friend Lord Renton, that educational and recreational purposes are not normally the business purposes of a farmer. But I think, with respect, that they have not taken on board either of the two points which I made, which are that the purpose of Clause 2 is to enable farmers to exempt themselves from the provisions of the Unfair Contract Terms Act. My noble friend Lord Caithness will not therefore have to advise them about their fundamental liabilities under Clause 2 at all. All he has to do is to advise them about the extent to which they are free to exclude the provisions of the Unfair Contract Terms Act.
As regards the second point made by my noble friend Lord Renton, I simply do not believe that you can turn what is basically a question of fact, depending on a number of different considerations in individual cases, into a question of law by putting a definition into an Act of Parliament, especially when the clause into which you have to put it is an exemption clause.