§ 3.30 p.m.
§ The Lord ChancellorMy Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
§ Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The LORD ABERDARE in the Chair.]
§ Clause 1 [Duty of occupier to persons other than his visitors]:
§ Lord Stanley of Alderley moved Amendment No. 1:
§ Page 1, line 10, after ("danger") insert ("(of which the occupier knows or ought to know)").
§ The noble Lord said: With the Committee's permission, I should like to say a few words on all five amendments tabled in my name and the names of my noble friends.
§
Amendment No. 5: Page 2, line 26, at end insert—
("( ) No duty 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.").
§ Amendment No. 6: Clause 2: Page 3, line 1, after ("recreational") insert ("or educational").
§ Amendment No. 7: Page 3, line 3, after ("occupier") insert ("(whether the occupier makes a charge for such access or not) ").
§ Amendment No. 8: Page 3, line 5, leave out ("the business purposes") and insert ("a substantial business purpose").
§ These amendments are all designed to further the objective of this Bill that my noble and learned friend has brought before the House today, which is to give more access to the countryside. As my noble and learned friend knows only too well, these amendments have been vigorously pursued and supported by farming organisations, in particular the National Farmers' Union and the Country Landowners' Association. If there are some tiny legal difficulties or drafting problems in these amendments, I am sure that my noble and learned friend, together with my noble friend Lord Renton, will be able to sort them out, for at the end of the day our objectives are the same—easier access to the countryside.
§ I hope that my noble and learned friend realises just how grateful I and the organisations are to him for bringing forward this Bill and for the help that he has given us in getting it here. Similarly, I hope that my 368 noble and learned friend realises that the farmers have made a great effort to bring it here and, for a change, we would not mind a little credit, as we have been in some quite unfair hot water just lately.
§ Amendment No. 1 makes it clear that if an occupier did not know of a danger, he cannot be liable for it. Frankly, in my layman's world, I thought that that would be so anyway, but apparently it is not. As the Bill is drafted, you can still possibly be blamed for something that is there, even though you did not know it was there.
§ I realise that this amendment may have a similar effect to Amendment No. 3 in the name of my noble and learned friend, and I await with interest his comments on this. However, I hope that my noble and learned friend will prefer my amendment to his, perhaps in his place in the Bill. I beg to move.
§ Lord RentonI rise very briefly to support my noble friend Lord Stanley of Alderley on this matter. It may well be that Amendment No. 1 has the same effect as, and overlaps with, the amendment of my noble and learned friend the Lord Chancellor, Amendment No. 3. But, for the sake of clarity and removal of doubt in subsection (1) of Clause 1, I think it might be an advantage to have my noble friend's amendment as well. I do not think that any harm could be done. It is rather interesting that subsection (1) comes as near as the parliamentary draftsman ever gets to a purpose clause, because in that subsection he explains the intentions of the remaining subsections of Clause 1. In doing so it might be an advantage to have it made clear that, with regard to the danger, the liability arises only when the occupier knows, or ought to know, of it.
§ The Lord ChancellorIt is, of course, true that I have a good deal of sympathy with the spirit of the amendment and I have tried to give effect to it in my Amendment No. 3. I shall be speaking to that at greater length when I move it. But it is both my view and that of the Government that Amendment No. 1 is in the wrong place. If we were to have both, I think that my noble friend Lord Renton would be the first to complain, because there would be different words to say the same thing in different places. I am sure that this is the wrong place.
There is also another defect in the draftsmanship of this amendment; I think that my noble friend Lord Stanley called it a tiny legal difficulty, and it may be. But although my father used the phrase "ought to know" in Addie v. Dumbreck, I think that he was speaking perhaps a little popularly. The draftsman tells me that there is not really a duty to know things and the phrase "ought to know" is not an appropriate one for this statute.
I shall come to my own amendment when we reach it. In the meantime, I hope that my noble friend Lord Stanley will accept that I am accepting the spirit of his amendment and the principle of his amendment. Therefore, there is no really substantial difference between us.
The Earl of CaithnessI am grateful to my noble and learned friend the Lord Chancellor for bringing forward his own amendment. I am advised that it is probably in a better position in the Bill than our 369 amendment. However, I am concerned about the definition and how the relative words in his amendment will be interpreted. The advantage, as I am led to believe—and I am no legal expert—of the words "ought to be" is that there is a much better safeguard than with the word "reasonable" when there is an uninvited visitor on the land. For example, if one takes the case of a fence round a pothole which has been there for 10 years and which has been vandalised once, I am informed that if our amendment is carried the landlord or occupier will be better protected than he would be in the case of my noble and learned friend's amendment where the word "reasonable" is used, because, the fence having been vandalised once, it might be argued by a clever barrister or solicitor that it was reasonable to expect it to be vandalised again.
§ Lord MishconIt is a pleasant stage in legal evolution when the language of the son improves upon that of the learned father. If I may say so with great deference, as has been rightly pointed out by the noble and learned Lord, the words "ought to know" would have a vagueness in law—an uncertainty in law—and, indeed, have no proper place in a statute. On this side we welcome the spirit of this amendment in the same way as has the noble and learned Lord. We await with interest his explanation of Amendment No. 3, which, upon the face of it, we also support.
§ Lord Graham of EdmontonCould we be told a little more clearly what I understood the noble and learned Lord, the Lord Chancellor to say, that in effect there is a better way of saying, and a better place in which to say it, that which appears in Amendment No. 1? If the sense of Amendment No. 1 is to be taken into account when Amendment No. 3 is moved, that seems to be a reasonable thing to do. The Co-operative Wholesale Society, which is the largest farmer in the land, certainly welcomes Amendment No. 1. I would imagine that, provided the words used later have the same effect as the words in Amendment No. 1, although perhaps in a tidier way, that would also meet their wishes.
§ Lord Campbell of AllowayIf one were to import Amendment No. 1 and Amendment No. 3, one gets the possibility of a situation where there could be a distinction between "has reasonable grounds to believe" and "ought to know". It may be difficult to envisage this in the abstract, but once one gets to a court of law almost anything can happen, and in my submission it is undesirable. As my noble and learned friend the Lord Chancellor suggested, it is perhaps erroneous drafting.
§ Lord McCluskeyMay I, with all the impartiality of a Scots lawyer, suggest to the Committee that the noble and learned Lord the Lord Chancellor is absolutely right about the placing of the matter? The answer I am sure he would give is that in the first subsection one is simply concerned to say that the rules enacted by this section take the place of other rules, and the proper place to put the content, as it were, and the ambit of the duty is where the Lord Chancellor chooses to put it.
However, having offered him that little comfort from my impartial position, perhaps I may go on to 370 suggest—and I shall be surprised if the noble Lord, Lord Renton, does not support me in this—that the words "ought to know" are just the kind of words that the Government ought to be putting into a statute so that the judges can interpret them in the light of the circumstances before them. They are nice general words. They seem to mean something to the common man in the tradition of the common law well known to the judges, and one would have thought that the Lord Chancellor was putting the wrong words in the right place, and that this amendment was putting the right words in the wrong place.
§ Lord Edmund-DaviesI venture to support the opposition of the noble and learned Lord the Lord Chancellor on the simple ground, which can be shortly stated, that subsection (1) is dealing with the ambit of the rules. When you get, on the other hand, to subsection (3) you have the nature of the duty. That I should have thought, with profound respect to those who speak for the first amendment, is the proper place to put it. The point has to be covered. It is an important point. However, it is best dealt with, in my respectful judgment, in the place which the noble and learned Lord suggests.
§ The Lord ChancellorThere has been a variety of opinions. The noble Lord, Lord Graham, put it very neatly. I agreed with the noble and learned Lord, Lord McCluskey, in the first of his observations and not in the second, and I agreed with my noble and learned friend on the Cross-Benches, and that is where I stand.
§ Lord RentonI wonder whether it would help still further to improve the amity which is prevailing in this discussion if I say that I now also agree with my noble and learned friend the Lord Chancellor.
§ Lord Stanley of AlderleyI am very pleased that my noble and learned friend accepts the principle of the amendment, which is all that I am particularly concerned about, as I told him earlier on. I am not able to master the intricacies of these legal points. I accept, however, that the place for this amendment is probably where the noble and learned Lord has suggested, and I await with great interest what he says on Amendment 3, because honestly I do not think that I ought to know which is the correct wording—"ought" or "has reasonable grounds". I beg leave to withdraw this amendment.
§ Amendment, by leave, withdrawn.
§ 3.43 p.m.
§ The Lord Chancellor moved Amendment No. 2:
§ Page 2, line 1, leave out ("persons other than his visitors") and insert ("another (not being his visitor)")
§ The noble and learned Lord said: Perhaps I may speak also to Amendment No. 4, which is associated with this amendment.
§ Amendment No. 4: Page 2, line 10, leave out ("them") and insert ("the other")
§ It is rather an esoteric draftsman's point, but I shall try to explain it as briefly as I may. The subsection to which the amendment applies deals with the duty of an occupier of premises towards persons other than his visitors, and that is a category which embraces, if that 371 is the right verb, a wide variety of uninvited guests. It would include, for instance, those who come like thieves in the night, and, at the other extreme, children innocently trespassing on the land. The occupier may see them and do his best to protect them from dangers. He may see them but decide to do nothing, or he may be blissfully unaware of their presence there at all.
§ Clearly the duty owed by the occupier will vary greatly from one category of visitor to the other, and this is made clear by subsection (4) of this clause. But the use of the plural "persons" in subsection (3) might, I am advised, induce the courts to construe the subsection as if the same duty were owed by the occupier to all his uninvited guests. The purpose of this amendment, therefore, is to take out the plural and insert the singular, and that is all it does.
§ On Question, amendment agreed to.
§ The Lord Chancellor moved Amendment No. 3:
§
Page 2, line 4, leave out paragraph (a) and insert—
§ The noble and learned Lord said: Now we come to the amendment which is intended to give effect to the purpose which my noble friend Lord Stanley of Alderley had in moving the first amendment. It really arises out of an exchange which I had with my noble friend Lord Gisborough on the Second Reading debate. He asked then that light be shed on this concept of danger. Would an occupier, he asked, be liable if he did not know the danger? I was grateful to him then and remain grateful to him for drawing the point to my attention.
§ The existing law is not entirely clear as to whether actual knowledge of a danger is necessary, or whether a lesser degree of knowledge might be sufficient to render the occupier liable. We have been thinking about this, and it would be unfortunate to allow this ambiguity to remain. Without some clarification, the Bill might be construed as creating a new duty in respect of any danger on the land, even one of which the occupier could not reasonably be aware, and that is not the Government's intention.
§ In moving this amendment, I must appear to some extent with a little blush on my cheek, because, having heard the debate on the first amendment, I find myself a little uneasy about the actual words I have chosen in this one. The doubt which has arisen in my mind was not exactly expressed in the first debate but it arises really in this way: how can you have reasonable grounds for being aware? This is the question which flitted across my mind. Probably there is a difficulty there. It might be that the courts would apply a purely subjective test when an objective test of what is reasonable is what is intended. However, what I shall do, with the permission of the Committee, is to move this amendment, which I think would do, into the Bill and I will have second thoughts about the phraseology before Report. I beg to move.
372§ Lord MishconThe Committee will be grateful, as always, not only for the noble and learned Lord's lucidity but also for his frankness when on his feet. However, I am going to try to persuade the noble and learned Lord that the language employed in this amendment is correct and that it does not need any alteration. I am merely voicing this view in order that it may be considered—I have no doubt with a complete lack of respect!—when the matter comes to be decided.
The amendment specifically does not repeat the word "know". Nor does it use the words "to be aware". The draftsman has in my view cleverly and properly used the word "believe", and not "know" or "be aware", as the noble and learned Lord said when he was speaking to the amendment. I think that "believe" is exactly the right word. Has the occupier reasonable grounds to believe, to think that there is in fact a danger which does exist? I would have ventured to suggest, as it is going to be considered, that the word "believe" gets the noble and learned Lord off the horns of the dilemma that he thought he might be on.
§ Lord RentonMay I express a different view? Mankind is endlessly torn about differences of opinion as to belief, but knowledge is something that can be ascertained. Also where there is plainly a duty of care, the simple word "ought" used by the greatly loved father of my noble and learned friend in Addie v. Dumbreck is a word which stood the test of time for many years. I venture to ask my noble and learned friend to indulge in a further exercise of filial piety and consider whether it might be wise to revert to the old expression "knows, or ought to know" in his further consideration of this matter.
§ Lord McCluskeyI am not in the least surprised that the noble Lord, Lord Renton, made that point. I foreshadowed that he would. I support him on it. Surely the position is that instead of going off to the strange phrases of "reasonable grounds" and "believe" and the philosophical and metaphysical complications that arise from the use of them, we should simply go back to the words that generations of English and Scots lawyers have become familiar with. It is the judges who will have to apply these words and they know what they mean. It took many decades before the English realised the terrible mess they had got their law of occupiers' liability into, and in the statute of 1957 they went back towards the old Scottish rules which prevailed before the House of Lords imposed English law upon Scotland for some decades.
Surely the House ought to support me in this and the noble and learned Lord the Lord Chancellor ought to bring his customary humility to his reconsideration of the matter and take the advice of the noble Lord, Lord Renton: discard these long and complicated words and do what he ought to do.
§ The Lord ChancellorThat is very kind of the noble and learned Lord; but in the earlier part of this week, oddly enough, I was sitting in a Scottish appeal on the Occupiers' Liability (Scotland) Act 1960. Having heard the noble and learned Lord, I am bound to point out to him that the Scottish Act does not follow his advice.
373 However, I stick to what I said about "ought", but I have difficulty in endorsing my own words (for which I take full responsibility of course) in paragraph (a) of my amendment. That uses the word "aware" and does, with respect to the noble Lord, Lord Mishcon, say "has reasonable grounds for being aware". It is that phrase, not the use of the word "believe" in paragraph (aa), which gives me a slight queasiness when I read it. I do not say that they are wrong, but I give notice to the Committee that I shall be thinking of the words deeply between now and Report stage.
§ Lord McCluskeyThe noble and learned Lord has misunderstood me. The Scots law was perfectly all right until the English House of Lords imposed an English structure upon it. The result was that we had to legislate to change it, and Parliament in 1960 got it wrong. That is why the statute is so difficult for the noble and learned Lord to understand when he hears the Scottish appeal. We ought to go back to the simplicity of 19th century Scotland by using words we ought to know.
§ The Lord ChancellorThe Scots are very keen on importing moral duties into most things; but the fact remains, in spite of what the noble and learned Lord has said, that when Parliament revised the law of Scotland it did not take the noble and learned Lord's advice.
§ Lord ColeraineI should like to suggest another reason why my noble and learned friend might take away the words "reasonable grounds" and think again about them. It seems to me that "reasonable grounds" are what an occupier of land might have to show if he was defending some form of action against an entrant, but not what an entrant should have to show an occupier.
§ Lord Graham of EdmontonMay I be quite clear as to the purport of the words of the noble and learned Lord the Lord Chancellor? In asking the Committee to accept his Amendment No. 3, he is advising us that perhaps on second reflection, possibly at Report stage, he will come back with a revision of Amendment No. 3. That will provide the noble and learned Lord with an opportunity for reflection, and it will also provide those outside the House with an opportunity of looking at the words which will now stand part of the Bill. In that case, I am perfectly satisfied with the Lord Chancellor's intention.
§ On Question, amendment agreed to.
§ The Lord Chancellor moved Amendment No. 4:
§ [Printed earlier.]
§ The noble and learned Lord said: I have already spoken to this amendment, and therefore I beg to move.
§ On Question, amendment agreed to.
§ Lord Stanley of Alderley moved Amendment No.5:
§ [Printed earlier.]
§ The noble Lord said: This amendment deals with a problem which upsets occupiers. At the moment a trespasser can sue an occupier for occupiers' liability 374 even though the trespasser had trespassed with intent. Indeed, he may have committed a criminal offence such as arson, theft or even assault. This seems illogical and I have to tell the noble Lord, Lord Mishcon, that I am afraid I was not privy to his conversations in Antrim. I realise that there is the odd problem with children and with those committing minor offences for which the occupier should be responsible. I hope that this amendment has been drafted in order to deal with these problems and have them in mind. I hope therefore that my noble and learned friend, as he did on the previous amendments, will again help me. I beg to move.
§ Lord RentonI wish strongly to support my noble friend Lord Stanley of Alderley on this matter. It seems to me that unless this amendment, or something to the same effect, is introduced into Clause 1 we shall have great uncertainty, we shall have confusion and we could have serious injustice. Those people who occupy land and want to be reasonable occupiers in allowing reasonable access to people—I am thinking especially of those who might be tempted to close existing rights of way or perhaps open-mindedly be willing to create new rights of way—will be very much afraid of adopting what I call a liberal attitude in this matter.
I hope that my noble and learned friend, if he is not accepting the amendment—I have no idea what he intends to say to your Lordships—will give it sympathetic consideration. I remind him that it is carefully drafted—I draw attention to the words "capable of being convicted"—in such a way as excluding from its scope people who do not have the capacity to be convicted of crimes. This applies specially to children under 10 who have no such capacity; but in the case of children between 10 and 14 years we have to bear in mind that there is a capacity only if the children knew that they were doing wrong in trespassing and in what they were doing.
I seriously urge my noble and learned friend that there is a real problem here, not an easy one to overcome I must confess from the legal point of view, but one which I hope will be the cause of his giving it sympathetic consideration.
§ Lord Campbell of AllowayThis is a moderate amendment designed essentially to protect the interests of children. To save taking up any further time, for the reasons that have been advanced by my noble friend Lord Renton, I most seriously support the amendment.
§ Lord McCluskeyI wonder whether I may ask the noble and learned Lord the Lord Chancellor about this amendment. Am I not right in thinking that if this amendment were allowed it would be a substantial retrograde step? Historically in England some duty was always owed to whoever came on the premises, however malevolent his intention or however criminal the means by which he got there. One could not set a mantrap for him. If I am reading this correctly—and I may not be—the effect would be that one could set traps for people who criminally entered upon premises. That surely would be a retrograde step. Am I wrong about that?
§ Lord RentonWith the greatest respect to the noble and learned Lord, surely if by statute a landlord or occupier is forbidden to set a trap—as, for example, the mantraps which were forbidden by legislation 150 years ago—there is nothing in the amendment which would legalise the use of such traps, deprive anybody who was injured by them of a cause of action or prevent him from being prosecuted.
§ Lord McCluskeyI was intending to use the word "trap" in the sense in which judges have used it in the past—any kind of a trap at all, and not a man trap necessarily, for the trespasser upon the premises.
§ Lord RentonI hope I may be allowed to come back on this. I was born in a house alongside which a river flowed and separated the house from the garden. We had a bridge from the house into the garden over the river. The only time we ever had a burglar—and, strangely enough, it was a woman burglar—was one who tried to approach the house not knowing that the river was there. She came at night, and the first that we knew of her intent to burgle the house were cries of, "Help me, help me!" from the river. There was a sudden drop to the river on the side furthest from the house, and it would have been quite extraordinary if my father had been exposed to an action in tort by that lady who might have complained that there should have been some way of protecting her from falling into the river. So when we are talking of traps we have to think of the reality of the ordinary situation, such as the one I have described.
§ Lord Campbell of AllowaySurely the noble Lord, Lord McCluskey, used the expression "setting a trap". If that was the expression he used, clearly it is not within the possibility or province, under general law, for people who have premises to set traps. As I understand it, nothing in my noble friend's proposed amendment is designed to alter that situation and to enable traps to be set.
§ Lord Edmund-DaviesI seek information from those who are proposing this amendment. A licensee goes on to premises, and he enters the premises for wholly innocent purposes falling within the ambit of the licence. Then, there, he is tempted by the luscious apples on an overhanging branch, and he steals half a dozen of them. Let us postulate also that he is a person of mature years. He has undoubtedly committed the crime of theft. Is that to say that the suggested amendment means that no duty is owed to him under the section at all, no matter how grave the danger?
§ The Lord ChancellorI am afraid that I must tell my noble friend and his supporters that whatever is good in this clause is already contained in subsection (4) of the clause, and anything which is not contained in subsection (4) of the clause is not good. The reason which I give is almost exactly, and I think (although I have not got his elegance of phrase) would be exactly, what my noble and learned friend on the Cross-Benches has just said. This amendment, if it were passed per incuriam by this Committee, would overturn almost the whole of the law which it is the purpose of the Bill to introduce. Again obviously I take off my hat to Addie v. Dumbreck for reasons to which 376 I have already referred, in spite of the displeasure of the noble and learned Lord opposite. But, in fact, it would revert to Addie v. Dumbreck. As the purpose of this Bill is to lay its ghost for ever, I am a little surprised that my noble friends with legal qualifications should seek to pursue it.
Of course, the truth about this matter is this. Subsection (4) says that the duty is in every case,
to take such care as is reasonable in all the circumstances of the case to see that he does not suffer injury on the premises by reason of the danger concerned".As I ventured to point out, perhaps half-humorously, on Second Reading, if you poke your head out of your bedroom window one night and see a burglar coming up a ladder towards your first floor, and the ladder is carefully placed on your drive, it is probable that a wise judge, after scratching his head, would not think it was reasonable to compel you to say, "Forgive me, but the third rung as you approach my window-sill is slightly defective". This, I think, is the sort of thing which a court can master after a lifetime's experience of the law.But in a sense this really goes back to spring guns and man traps, although in Addie v. Dumbreck my father was very careful to exclude spring guns and man traps from his purview. What the amendment really says is that if a person is on premises having committed an offence—which would be the case to which my noble and learned friend on the Cross-Benches referred—or with the intention of committing a criminal offence, no duty is owed to him at all by virtue of the Bill. That is what it is saying.
I ask the lawyer's question (it was asked once before by Lord Atkin, and earlier still by a lawyer who had an even better capacity to answer it than I): Who is my neighbour? That was Lord Atkin's question, and it was asked before; but nobody ever said in reply that you owe no duty at all to the trespasser. This is the proposition that we are asked to accept; and it is not true. You do owe a duty to the trespasser. It is the duty, as I suggest, to take such precautions as are reasonable in the circumstances of his trespass. That is right and anything else, I think, is wrong.
I revert—because I have already spoken on an earlier amendment to something which fell from the noble and learned Lord. Lord McCluskey—to Scottish law, which I was considering judicially in the earlier part of this week. When Parliament came to revise the law of duty towards trespassers, among others, in Scotland, in order to get rid of Addie v. Dumbreck it first of all used a form of words—and I have the words here—which mutatis mutandis is identical with the form of words in the Bill as drafted. That is the law of Scotland in this day, having been introduced through Parliament in 1960. The only trivial variation from the form of words used in the Bill as drafted was that it covered other damage besides personal injury; and in this Bill we are talking about personal injury.
I should be very sorry indeed to accept an amendment which went back to categorisation (albeit they are different categories from those sanctified by my father in Addie v. Dumbreck) and very sorry to go backwardsand create a situation in which the law of England and the law of Scotland, in two comparatively recent statutes, were different from one another in a vital respect. With those words I must say, quite 377 frankly, that I have not the same sympathy with this amendment, or even its purpose, as I had towards an earlier amendment proposed by my noble friend and his associates.
§ Lord MishconI wonder whether I may intervene for a moment to mention a further difficulty which seems to me to arise out of this amendment, apart from those to which the noble and learned Lord has drawn our attention. He gave the example on Second Reading, and repeated it today, of the gentleman climbing the ladder, and the obligation to draw his attention to a defective third rung. This amendment presupposes that the proprietor of the land or house in question is judge and jury, and that he is able to call upon his own judgment to decide, at a time when he either ought to warn (in the language of the noble and learned Lord) or ought not to warn, whether the person concerned is intending to commit a crime, or has committed one. It is at that stage, and not after the verdict of the judge and jury, that the vital decision has to be taken. If I may say so, this is a most unrealistic amendment and one that would presume the proprietor of the land to possess knowledge which only the Almighty ought to have in the circumstances.
§ Lord RentonThe real case that my noble and learned friend the Lord Chancellor has made against this amendment is that the circumstances which could arise under it and which are envisaged by those of us who have moved it can be satisfactorily dealt with always by Clause 1(4). I say to my noble and learned friend, with great respect, that if that is so there will be a number of cases fought in the courts, and perhaps going right up to the House of Lords, in order to decide whether the person who was trespassing and had a criminal purpose, as, for example, in the simple case of the stealing of apples, or the burglar climbing up the ladder, was covered by subsection (4) with all clarity or not. The courts may disagree, in the great multiplicity of circumstances that might arise; and I would have thought that while we were legislating on this matter we should try to put it beyond doubt.
At Second Reading, in col. 743, on 12th July 1983, my noble and learned friend, replying to the debate, said this:
I hope that this Bill will clarify the law rather than create a revolutionary change in it".We are not asking for a revolutionary change, and if our amendment gave the impression that we were doing so, then that is our fault and it is to be regretted. But I still say that unless we have something like this we shall have uncertainty, confusion and possibly injustice. Therefore, having listened carefully to what my noble and learned friend says, and to other speeches in this debate, I hope that we shall not regard this matter as closed now if my noble friend Lord Stanley of Alderley decides to withdraw his amendment—as he may well wish to do—and that we may consider the matter further between now and the Report stage.
§ The Lord ChancellorI am anxious not to repeat myself, but I would urge my noble friend Lord Renton perhaps to think again about this. The law of Scotland, which was imposed by Parliament in 1960, has worked perfectly well for 23 years without any of the 378 difficulties which he envisages having arisen. That gives it a prima facie case for careful consideration, and it is in the Bill. Secondly, take the case of my noble and learned friend on the Cross-Benches: if a man steals apples on your land, is it really to be said in a Christian country that you do not owe him any duty? I will not stand for that.
§ Lord RentonWith respect, I did not say that.
§ Lord Stanley of AlderleyI, too, was somewhat worried by the noble and learned Lord's ladder story on Second Reading. Before withdrawing this amendment, let me say that I hope that my noble and learned friend will give it some thought between now and the Report stage. As I understand it, minor offences such as the stealing of apples would be covered by the Theft Act, as would be for instance, stealing mushrooms or wild flowers—although wild flowers, I suspect, would be covered under the Wildlife and Countryside Act.
I am not entirely happy, as a layman, about the criminal who trespasses and the occupier's legal liability towards him, or about the defective ladder or in fact the carelessly-left hole and how liable I am, as an occupier, to a criminal. However, having listened very carefully to speeches made by noble Lords throughout the Committee, I can only hope that if I come up before a court my noble and learned friend the Lord Chancellor will be there and will take a similar view that I do not have to tell the chap that the third rung is defective. I hope no other court would disagree with that view. I am afraid that I am still somewhat unhappy, but I beg leave to withdraw this amendment.
§ Amendment, by leave, withdrawn.
§ Clause 1, as amended, agreed to.
§ The Earl of SwintonI beg to move that the House do now resume for the Statement.
§ Moved accordingly and, on Question, Motion agreed to.
§ House resumed.