§ 7.32 p.m.
§ Lord Lyell rose to move, That the draft order laid before the House on 2nd April be approved.
§ The noble Lord said: The order, which corresponds to the Occupiers' Liabilty Act 1984 in 532 England and Wales, deals with two distinct aspects of the civil liability in Northern Ireland of an occupier to persons on his land or premises. Article 3 is concerned with the duty of an occupier to persons who are not regarded in law as his "visitors". Article 4 concerns the extent to which an occupier of business premises may permit visitors to come on his land or premises on terms which exclude or restrict his liability.
§ The purpose of Article 3, as far as liability to trespassers is concerned, is to restate on a statutory basis (and I hope clarify) the present common law rules derived from the decision of the Appellate Committee of your Lordships' House in British Railways Board v.Herrington, which involved the liability of an occupier to a child trespasser. The decision was unanimous in favour of the child but contained several different lines of reasoning. As a result my noble and learned friend Lord Hailsham of Saint Marylebone asked the Law Commission to consider the matter of liability to trespassers. The Law Commission recommended that the matter should be placed on a statutory footing.
§ Article 3 again follows the Law Commission's recommendations in applying also to persons who are not the occupier's visitors but who are nevertheless on the land or premises with lawful authority. Persons exercising private rights of way come within this category, as do those exercising rights under access orders and access agreements. This should further clarify the law.
§ Article 4 is intended to facilitate an occupier of business premises such as farmland to permit visits on his land for recreational or educational purposes. It does this by altering very slightly the boundaries of business liability under the Unfair Contract Terms Act 1977—that was my apprenticeship which took place 10 years ago—so as to enable the occupier to permit visits for recreational or educational purposes, such as rock climbing or bird watching, on terms which effectively exclude or restrict his liability for the dangerous state of the premises. But such a restriction or exclusion of liability is circumscribed by Article 4. I have already indicated that the visit must be for recreational or educational purposes.
§ Secondly those purposes must not fall within the business purposes of the occupier, so that the occupier of the cinema or safari park, for example, will still remain subject to the Unfair Contract Terms Act 1977 as far as his ability to exclude or restrict liability is concerned. Thirdly, an occupier will not be able to avail himself of Article 4 in respect of his liability for dangerous activities on the land. Again, in those circumstances the Unfair Contract Terms Act 1977 will continue to apply to the business premises in relation to any such purported exclusion or restriction of liability. Under the Unfair Contract Terms Act 1977 an occupier of business premises cannot effectively exclude or restrict liability for death or personal injury resulting from negligence or breach of statutory duty under the Occupiers' Liability Act (Northern Ireland) 1957; and any such exclusions or restrictions in respect of other loss or damage are subject to a test of reasonableness.
§ Finally, I refer your Lordships to the one change in the order since it was published as a proposal. It is a 533 drafting change. The second limb of the definition of "road" in Article 3(9) has been expanded slightly. The words "or way" are intended to cover public rights of way which would not ordinarily be considered to be roads as such; public footpaths would come into this category. This amended definition corresponds closely to the expression "highway" in the English 1984 Act.
§ With that brief run around the order, I hope that I have been able to give some clarification. I beg to move.
§ Moved, That the draft order laid before the House on 2nd April be approved.—(Lord Lyell.)
§ Lord Prys-Davies
My Lords, I should like to endorse the reservations of my noble friend Lord Fitt about legislation by Order in Council. From these Benches we have been consistently critical of legislation by Orders in Council. It is one of the penalties of direct rule, and it is a matter to which we shall return during the debate on Thursday.
We are grateful to the noble Lord for his comprehensive explanation of the significance of the Occupiers' Liability (Northern Ireland) Order. His explanation of orders is invariably good and comprehensive. It is a brief order. Its essence is to be found in Articles 3 and 4, which follow the relevant sections of the Occupiers' Liability Act 1984. Article 3, unlike Article 4, follows the law of England, Wales and Scotland. When it was introduced it was supported by the Law Commission and the Royal Commission on civil liability. It seems to me that we can follow that guidance with regard to Northern Ireland.
As the noble Lord has explained, Article 4 deals with a consequence of the Unfair Contract Terms Act 1977 and restricts the liability of the landowner towards persons who are permitted on his land for recreation or educational purposes, and as a matter of goodwill. This was an area of law over which there had been much uncertainty and difficulty. An ever-growing body of townspeople wish to share in all the pleasures of the countryside and we hope that this relaxation will encourage farmers to allow people increased access to the countryside.
However, I have this question to ask the Minister on Article 4. The principle contained in Article 4 does not apply in Scotland. When the Occupiers' Liability Bill was before Parliament in 1983 the Minister's Scottish brethren deliberately decided not to introduce this amendment for the law of Scotland. I believe that the Law Society of England and Wales on that occasion had very strong reservations with regard to the principle of Article 4. The Minister will therefore have anticipated my question. Can he tell the House why the Northern Ireland department has decided not to follow the Scottish precedent but to follow the English and Welsh precedent? This would be a very appropriate question for the assembly to pronounce upon, but the assembly is not in being.
I should be grateful if the Minister could tell the House what organisations in Northern Ireland were consulted about Article 4. Will he say whether or not reservations of objections were expressed by those 534 organisations? Or were all content to go along with the English and Welsh precedent?
§ Lord Hampton
My Lords, I thank the Minister for introducing the order. Again, I am indebted to the noble Lord and to the noble Lord, Lord Prys-Davies, for their views. Following upon what the noble Lord, Lord Fitt, said, I am interested in confirmation that the law is being brought into line with that of England and Wales. As the noble Lord, Lord Prys-Davies, has said, in some cases the Scots wished to go down a different road. However, I see no reason not to support the order.
§ Lord Lyell
My Lords, the noble Lord, Lord Prys-Davies, was kind enough to hint that he might be supporting the law of my nation as opposed to that of England and Wales. I took the precaution of bringing with me the relevant statutes of the Unfair Contract Terms Act 1977. I note that it is split into two halves. Part II of the Act covers the amendment of law for Scotland. However, I think that no-one in your Lordships' House would wish me to go too far down the road as to why there is Part I and Part II of that happy Act. The Act is split between the law of England and Wales and Scotland.
With regard to the matter before us this evening, Northern Ireland has traditionally followed the same legal principles as England and Wales on the subject of occupiers' liability at common law and in statute form. We see this with the Occupiers' Liability Act (Northern Ireland) 1957. This corresponds to the Occupiers' Liability Act 1957 in England and Wales. Accordingly we decided to keep the law on the same footing and not to follow the Scottish mode. We believed for perfectly valid reasons that we should keep the occupiers' liability principles on the same line as those of England and Wales. We do not believe that there is any loss of right to members of the public. I shall not go into too much detail this evening about what might have been done or the particular Acts. I mentioned the example of a cinema, or an animal park. The two examples that I gave were visits on to land for educational or recreational purposes which, in my view and that, I believe, of noble Lords, would be an infrequent and irregular occurrence.
It was with this in mind that we drew the business liability definitions in the Unfair Contract Terms Act 1977 a little more tightly. However, we think that the amendment to the Unfair Contract Terms Act 1977 should follow the English amendment with regard to occupiers' liability because we wish Northern Ireland occupiers' liability to remain in step with England and Wales.
The noble Lord, Lord Prys-Davies, had one other query about this aspect of Article 4. That is more complicated than the answers I have been able to give him this evening. Perhaps I may write to him with my traditional brevity.
I am very grateful for the interest shown by the noble Lord, Lord Hampton. I hope that I have answered the queries raised by your Lordships.
§ On Question, Motion agreed to.