§ (" .—(1) If any person having an interest in any land wishes to ascertain whether that land is excepted land he may make an application for that purpose to the appropriate countryside body specifying the land.
§ (2) If the appropriate countryside body considers that the land, or part of it, is neither open country, registered common land, nor is dedicated for the purposes of this Part under section 16, the body shall make a declaration to that effect.
§ (3) Subject to subsection (2), if, on an application under this section, the appropriate countryside body consider that the land was excepted land at the time of the application, the body shall issue a certificate to that effect.
§ (4) Subject to subsection (2), if the appropriate countryside body consider that part of the land the subject of the application was excepted land at the time of the application, they shall issue a certificate in respect of that part.
§ (5) A certificate under this section shall—
- (a) specify the land to which it relates,
- (b) give reasons for determining that the land is excepted land,
- (c) specify the date of the application for the certificate.
§ (6) It shall be conclusively presumed that land which is the subject of a certificate under this section was excepted land on the date of the application for the certificate.
§ (7) Regulations may make provision supplementing the provisions of this section.").
§ The noble Lord said: Amendments Nos. 196A and 196B are set out in the Marshalled List. The mapping programme shows commons and open countryside, but it does not show excepted land. That could lead to all sorts of difficulties of definition. On the ground, the boundary between access land and excepted land may be unclear, not to say obscure. Readers of maps may not be good at interpreting the various features shown on the map. As a result they may stray on to excepted land, where they may encounter unexpected dangers, such as a bull or a covered reservoir. Moreover, if a farmer puts up a notice on access land that he honestly but mistakenly believes to be excepted land, he will be guilty of an offence.
§ For the benefit of all sides, we should require maps to show the status of all land, both access and excepted. That would clarify boundaries, lead to fewer errors and give greater safety to the public. If the Government are not prepared to accept that, there should be provision to permit those with an interest in certain land to apply for a certificate that states clearly and unambiguously that it is excepted land. That will be for the benefit of all parties—landowners and those seeking to exercise their right to walk across access land.1485
§ The amendment is worded to ensure that the appropriate body does not have to consider whether the land is excepted land. If it considered that the land was plainly not open country, registered common land or Section 16 dedicated land—in other words, the wheat-growing areas of East Anglia, which are so obviously neither moor, mountain, heath or down—the appropriate body would merely issue a statement to that effect. That is to ensure that the application system does not get clogged up with anxious landowners seeking certificates stating that their land is excepted.
§ Of course, if the status of the land changes, such a statement or certificate may be revoked. However, it is more likely that landowners will ensure that their land does not revert to heath or down.
§ Yet again, we are pleading for absolute clarity and the utmost professionalism and ease of understanding of the maps that will be produced. I beg to move.
§ Lord Whitty
I understand where the noble Lord is coming from, but we do not think that the amendment is necessary. It would create a new procedure. In our view the features that are defined as excepted land are, for the most part, readily identifiable. We are talking about land that would otherwise be access land according to the broad definition. We are talking not about the wheat fields of East Anglia, but about land that would otherwise be within moors or heaths, but which, primarily because of its use or its features, is excepted according to the list in Schedule 1, which has been kept reasonably short.
There is no special provision for the resolution of disputes, primarily because the features involved are so readily identifiable by landowners and users. In the majority of cases, there is no difficulty in identifying a garden, a racecourse, a railway or a golf course. As we have said in previous debates, land that has been ploughed or drilled in the past year will also be reasonably identifiable.
The excepted status of land may also vary depending on the use made of it; for example, one exception is animal pens when they are in use, which obviously can vary from month to month and even from week to week. As I said, cultivated land is excepted only for 12 months. Therefore, we see no need to set in place a complex procedure for certification of the status of excepted land. It will be readily apparent. Even if it were certified, the status may change quite rapidly from time to time. Therefore, a certificate would not be a permanent indication of the status of the land.
Nevertheless, despite the fact that the vast majority of these matters will be readily identifiable and agreed, ultimately any dispute can be resolved through the courts. For the reasons which my noble friend Lord McIntosh spelt out at an earlier stage, we do not believe that that is an appropriate task for the Agricultural Lands Tribunal, which would be the procedure for resolving disputes, together with the procedures set out by the noble Lord. Therefore, we do not believe that these amendments are necessary. The 1486 exemptions on the list are pretty well identifiable. The number of disputes would be relatively small and, it is hoped, easily resolvable by negotiation. The final backstop would be the courts but they would be rarely used. I hope that on that basis the noble Lord is reassured.
§ 6.30 a.m.
§ Lord Glentoran
I thank the Minister for that response. I do not know whether it will be possible to do so before Report stage, but it would be helpful if we could be given a clearer picture of how the maps are put together. I do not see that a problem exists in showing excepted land on the map. If the map of an area shows access land, excepted land and so on, we hope that it will show access points to excepted land, to access land and the various other items that we would like to see on it.
I believe that it would be helpful and would give us confidence if before Report stage we could be given an idea as to how the maps will grow and take shape and of what will be available on them to both landowners and ramblers. I assume that the maps will be of the type that we would use to go on cross-country walks in strange areas or areas that are new to us and where we need maps and compasses. I should be interested to know how, in the light of the Bill, the Ordnance Survey map will be enhanced to show all the items that we need. I believe that when we have some understanding of and confidence in the structure of the map we shall be less concerned about many matters. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 196B not moved.]
Clause 12 agreed to.
§ Clause 13 [Occupiers' liability]:
Lord Whitty moved Amendment No. 197:
Page 8, line 6, leave out ("("the 2000 Act")").
§ The noble Lord said: In moving Amendment No. 197, I wish to refer also to Amendment No. 306. These amendments correct drafting errors in consequence of amendments made in another place where the corrections were not fed through to the rest of the text. They have no substantive effect. Amendment No. 197 removes reference to "the 2000 Act" as there is now no further reference to the Bill in that provision. Amendment No. 306 substitutes reference to "definition" for "sub-paragraph" in the definition of livestock in Clause 41(1). That had previously been overlooked. I beg to move.
§ On Question, amendment agreed to.
Baroness Byford moved Amendment No. 198:
Page 8, line 17, leave out ("natural").
§ The noble Baroness said: In moving Amendment No. 198, I shall speak also to Amendments Nos. 200A and 202. Amendment No. 199 is also in this grouping and I expect that my noble friend the Duke of Montrose will speak to his amendment. The noble Viscount, Lord Bledisloe, is not in his place so I expect that his amendment will not be moved.1487
§ We come now to deal with some very important issues. I know that we raised them on Second Reading with the noble Lord, Lord Whitty. I refer to the whole question of the occupier's liability and liability to be excluded in relation to any long-standing structure.
§ The Bill currently removes the liability in relation to natural features, specifically mentioning plants, shrubs or trees. However, it does not refer to non-natural features. Indeed, we discussed that earlier. These amendments tackle that issue, broadening the occupier's protection from liability to entrants by recognising that liability should not be attached to the features which have been a long-standing part of the working landscape.
§ It should be stressed that the amendment would not remove liability in relation to the activities of the owners or occupiers of access land, nor could an occupier disregard the safety of entrants with regard to any hazard associated with a feature created after the right of access had been granted.
§ The amendment seeks to remove as much ambiguity as possible. The approach of removing the arbitrary division between natural and man-made features would lead to less litigation, assist effective land management and provide the need for risk assessment and hazard reduction on the access land.
§ Statute and case law show that the owner should not be made liable for the state of a premise where access is of right; for example, where he cannot exclude the entrant. I recommend to the Committee the example to be found in Section 1(7) of the Occupiers' Liability Act 1984 in which the highways were excluded from the ambit of the Act.
§ Unless the Minister tells me otherwise, "natural features" is not a recognised term and there would be difficulties for the occupier, the public and, ultimately, for the courts in deciding what is or is not natural. For example, lakes can be natural or they can be man made. They may have been in existence for many generations. When does an artificial lake become a natural lake?
§ Further, why should the liability regime be different? The fact is that much of the natural landscape as we know it today is non-natural and with man-made features which have been built up over many centuries.
§ That is now the make-up and look of the countryside which the public enjoy to which we refer as having "natural features". The effect of the present law as drafted is that from day one of the new right of access being granted, the occupier will have to undertake risk assessment and deal with potential hazards that could be argued to be non-natural.
§ Further, it is really the intention that all obviously man-made structures, such as dry-stone walls, should have to be assessed for their safety or removal. That will be the effect of the present proposal. In the other place, the Minister stated in Committee that there are provisions to close where, exceptionally, man-made features pose a threat to public safety. It would also be 1488 reasonable for a landowner or occupier to seek closure if he would face unacceptable costs or could not provide for adequate protection of the public. The Minister would expect the closure to be granted. The Minister could refer also to the claims against the National Trust or the Forestry Commission, arguing that their "low" level of claims indicates that the problems are small. However, full account should also be taken of the immense investment made by such bodies in making their land safe so that claims do not occur. Unfortunately, most owners and occupiers do not have those resources. In times that are still difficult in farming, noble Lords will understand when I say that I cannot see them having available to them the resources to make land safe that will be available to trusts and the commission.
Amendment No. 200A deals with the removal of liability for injury caused by livestock on access land. The Bill as drafted amends the Occupiers' Liability Act 1984 to the effect that the occupier of the land owes no duty to anyone on access land in respect of a risk resulting from the existence of any natural features of landscape. The Bill goes on to state that,
any plant, shrub or tree, of whatever origin, is to be regarded as a natural feature of the landscape".
It is astonishing to me that livestock are not mentioned. Man has been domesticating, tending and breeding livestock for thousands of years, but the fact remains that no matter how domesticated that livestock may be, certain elements remain unpredictable and sometimes positively dangerous.
§ Fields are not always flat, and as one cannot always see over the brow of a hill, livestock can pose quite a threat to the public who will have access to the land. It is possible to enter a field where the livestock cannot be seen. That can be dangerous. The most obvious examples are boars, rams and even billy goats. The noble Countess, Lady Mar, is not in her place but she knows about goats. Over the years such animals have injured or killed people. Young cattle when startled can become excited by the presence of strangers and when the strangers have dogs with them, that excitement can lead to a stampede.
§ My family had an elderly dog which upset the cattle in our field and she was knocked down, which was not a happy experience. Last year there was a tragic case of a lady walking her dogs across fields in Dorset. A similar situation occurred and she was trampled and killed.
This amendment removes the liability from occupiers for injury caused by livestock on access land. It puts into effect what is stated in the paper, Land Management Implications of Enhanced Access to the Open Countryside, which was prepared by the Royal Institute of Chartered Surveyors. Paragraph 3.1.5 says:
Liability for injury caused by cattle is now a further issue. It should not apply to walkers across open country otherwise there will be difficulty in managing livestock in the hills. Any further decline in cattle grazing will conflict with conservation goals which are seeking to encourage suckler herds back into the hills to achieve appropriate management".
Amendment No. 201 is self-explanatory. Amendment No. 202 inserts a long list which includes,
any plant, shrub or tree, of whatever origin, and any drain, ditch, wall, fence, hedge, gate, stile, footbridge, building (whether operational, disused or abandoned), shooting butt, reservoir, dam, dewpond, mineshaft, path surface (where a path has been provided with a surface) or ancient monument".
That is a long list. But, as we debated at Second Reading and earlier when talking about the purpose clause, it is difficult to define what should be included in the list if we rule "natural" out as being the accepted sense of natural.
§ Clause 13 relates to occupiers' liability and the liability to be excluded in relation to a list of non-natural features. The Bill currently removes liability in relation to natural features, especially plants, shrubs or trees. But it does not relate to any non-natural features. The amendments tackle that issue, broadening the occupiers' protection from liability to entrants by recognising that liability should not be attached to features that have long been part of the working landscape.
§ The amendments provide a non-exclusive list of man-made features which could unfairly be subject to occupiers' liability despite the length of time they have been an integral part of the landscape. No duty would be owed in relation to any features of the landscape, whether natural or man-made, or whether non-natural or man-made where features other than natural features would be included in those features listed, such as drains, ditches and walls. The amendment would not remove liability in relation to the activities of owners or occupiers of access land.
§ The amendments seek to remove as much ambiguity as possible. The approach of removing the arbitrary division between natural and man-made features and of listing features exempt from the 1984 Act would lead to less litigation, assist effective land management and ameliorate the need for risk assessments and hazard reduction on access land. Further, the amendments would encourage occupiers to assist access to the land by, for example, the erection of stiles without fearing that they would be incurring a greater liability burden.
§ Statute and case law indicate that owners should not be made liable for the state of the premises where access is as of right; for example, where they cannot exclude the entrants. Members of the Committee should refer to Section 1(7) in the Occupiers' Liability Act 1984, under which highways are excluded from the ambit of the Act.
§ "Natural features" is not a recognised term and there will be difficulties for the occupier, the public and, ultimately, for the courts in deciding what is and what is not natural. For example, lakes can be natural or man-made and have been in existence for generations. When does the artificial lake become natural? Further, why should the liability regime be different? Much of the "natural" landscape of the countryside is non-natural and many man-made features make up the look of the countryside.1490
§ Members of the Committee will ascertain from the list I outlined and the detail into which I have gone that I am anxious that the rights and liabilities of owners and occupiers should be clearly laid down in the law. I fear that if we do not do that, the courts which have to interpret it will not thank us for not clarifying what is and what is not natural or man-made. I beg to move.
§ 6.45 p.m.
§ Lord Whitty
It may be appropriate for me to indicate, before we go into general debate, where the Government stand on this matter. Without resiling at all from our central point on this, the issue of occupiers' liability has been greatly exaggerated as a problem by those who wish to limit the impact of this Bill or even oppose it. Nevertheless, we accept that the exclusions that we have so far provided need to be widened. Although I do not accept everything that the noble Baroness says in relation to natural features, there are other features where similar arguments apply.
I regret to say that of all the amendments in the group to which the noble Baroness spoke with such clarity, the one which is closest to the amendment I propose to bring forward is one she has not mentioned; that is, that in the name of the noble Viscount, Lord Bledisloe, who is not in his seat. That amendment refers to buildings, which is wrong because buildings are already excluded. It also refers to walls, hedges, gates and so forth; in other words, boundary features in the broadest sense.
We intend to bring forward an amendment which would exempt people climbing over or going through boundary features from occupier liability. That would not exclude liability if a wall fell on someone without him touching it, but it would exclude liability if someone were going through a boundary feature.
That would deal with many of the points raised by the noble Baroness, although it does not say where the dividing line is drawn between natural and non-natural. Non-natural is included in the exemption and we might think of better tightening up between now and the Report stage.
I have points to make on the other amendments, but I will leave them until the end of the debate.
§ The Duke of Montrose
As my Amendment No. 199 is in this group I would like to speak to it now. I am conscious of entering a complicated area and of the hour of the day. I wonder whether one should be going into complicated matters, but perhaps I should follow the example of my noble friend Lady Byford who sailed into all the complications which arise.
I have no doubt that lawyers looking at my amendment will be thumbing through the Animals Act 1971. The purpose of my wording is to leave the owner of animals with a liability for animals belonging to dangerous species as laid out in that Act. However, in implementing the Bill, the problem arises with animals not belonging to a dangerous species. I refer in particular to those who are keeping animals as defined in the Bill or others for commercial gain.
1491 Unless kept in a building—animals such as billy-goats and bulls are not allowed out—it will never be possible to put other livestock into a quiet and out of the way field. All fields become liable to access. In normal husbandry, animals such as beef bulls, rams or cows with calves have to be put out in a field. My mind goes back to the gentleman who had to make an escape from my cows—I mentioned him at Second Reading—and to the sad tale referred to by my noble friend Lady Byford about the lady in Dorset.
If we rely on the 1971 Act, unless the farmer were to tether every individual animal, he would have a liability because most of them could cause severe damage. The liability of the farmer to pay damages to people could escalate to an unfair degree. As we are introducing a new privilege, it should not be unfair that those enjoying it should carry more liability. I hope that the Minister can include an element of that in any future amendment.
§ Earl Peel
I welcome what the Minister has said on the thorny question of liability. I had always thought it an extraordinary imposition to put on owners and occupiers the responsibility for the new right of access which the Government have introduced.
I want to ask the Minister two brief questions. First, when he comes back with amendments at the Report stage, will he take into account night access? Clearly there will be more difficulties and perhaps greater liability at night. I hope that he will take that into account.
Secondly, have the Government considered what the likely increase in insurance premiums will be for, say, an average farm with access areas? It seems that the Government should bear in mind an assessment of the likely costs.
§ Baroness Hamwee
The Minister's intimation that he will come back later with some amendments is obviously welcome. We on these Benches remain concerned about the term "natural" as applied to features. As the noble Baroness has said, there is little of the English, and, I dare say Welsh landscape—though possibly more of the English landscape—which is natural in the sense that it is the landscape that was here hundreds or thousands of years ago. It is the product of the development of our society.
I was struck by the use of the term "traditional" as applied to features of the landscape. That might apply to things such as dry stone walls. I think it would also apply to ponds built many hundreds of years ago. It is hoped that the Government will be able to give some further thought not to extending the definition but rather to making the matter entirely clear. On these Benches we generally support the Government in their approach to liability to those exercising rights of access and to trespassers, but we are particularly concerned about the scope for confusion in the terminology.
§ Lord Greaves
I support everything the noble Baroness, Lady Hamwee, has just said. This particular 1492 issue resulted in an unusual joint letter from the Country Landowners' Association and the British Mountaineering Council, both supporting the removal of liability from landowners and occupiers for landscape features generally, and the removal of the word "natural". I understand that the Ramblers' Association is not as enthusiastic about removing it but it can live with it. I hope that is a summary of its position.
The Minister suggested it was a question of where to draw the dividing line between natural and non-natural. I would suggest that the Minister is asking the wrong question because wherever we draw the line it will be wrong. The dividing line ought to be between features of the landscape and something else.
I shall cite two examples. (I call this the "Fat Betty" question, and I will explain why presently.) The first type of landscape feature I would mention is the one which is of most interest to climbers in areas like the Peak District; namely, crags. One crag appears completely natural and completely unquarried. There is another crag nearby or another part of the same crag which is huge and called Stanage Edge near Sheffield. It is one of the longest— perhaps the longest—stone crags in the whole of the north of England. It looks completely natural and then suddenly when climbing on part of it one comes across what is obviously a quarried millstone which was left there when the quarry was abandoned. Upon closer inspection it can be seen that the rock face is quarried.
On visiting another quarry just down the valley it can be seen that it is clearly an old quarry. If a piece of rock falls on one's head when one is exercising the right of access, if it is natural the owner is not liable, but if it is from an old quarry will the owner be liable? It is that kind of distinction that concerns me. It does not matter if people are not in a litigious frame of mind.
For many years people who have gone out into the countryside have accepted that it was their liability and if they tripped over something or fell off something or something fell on them it was accepted that it was part and parcel of what happened when going into the countryside. The way things are going with lawyers touting their services to anybody that they can find on a "no win, no fee" basis, who knows what might happen. Unfortunately that is the kind of society that we are moving in to and the legislation has to reflect that.
I come back to Fat Betty. If one goes to the North York moors they are littered with ancient pieces of stone and other things which have been erected by people in the past and which might fall on somebody. There are many parish boundary posts and crosses. One of those crosses at the top of the moors is called Fat Betty. I do not suppose that that was its name when it was erected. It is possible that someone may lean on it so that it falls over. Who is liable for that? That is not a natural feature: it is a carved stone cross on top of the moors. Let us have common sense and an understanding on the part of the Government that their attempt to define natural and non-natural features is nonsense and will simply land people in trouble.
§ 7 a.m.
§ Lord Whitty
We recognise that there is a problem about defining the precise boundaries of "natural". We believe that, with the further move that we have indicated, at least some clearly man-made features will be in the exemptions. The key issue is not what is called "natural" and what is called "man-made" but what is clearly exempted. If we used the term "traditional" it is probable that arguments about what that covered would be at least as controversial as references to "natural" and "non-natural"—and probably worse. However, we recognise that there is a problem in this area and we shall look at it and see whether anything further can be done.
As to the amendment in the name of the noble Duke, the Duke of Montrose, dealing with livestock, this is not really a matter of occupier's liability. Livestock are not covered by occupier's liability but specific statutory provision, including the 1971 Act or the general law on negligence. If they are dangerous animals, liability arises under the Animals Act 1971, and there is no real reason for changing that. If they are not dangerous animals or species, a landowner is most unlikely to be held negligent if they are put on his access land. Because an individual would have to prove negligence, there is no real need for any special provision. Therefore, in most circumstances the kinds of situation described by the noble Duke would not give rise to liability.
I turn to the view of the noble Earl, Lord Peel, about liability. We do not believe that it is a huge imposition on landowners of access land; it is equivalent to the position in relation to trespassers on any land, subject to the exclusions that the Committee is now considering. I indicated at Second Reading that we had made an assessment of whether this would give rise to a serious insurance cost. The answer is that it is negligible because, having looked at other areas of access land, the incidence of claims is very low.
I note the point made by the noble Baroness about National Trust land, but that applies also to areas of voluntary access on private land. Therefore, I do not believe that the question of insurance premiums arises. For that reason, this is not a serious imposition on landowners, particularly if we manage to define as exemptions those areas that are most likely to cause injury and, therefore, the remote possibility of liability. If one excludes the areas referred to earlier which one intends to be covered by natural features, and notes the position on livestock, the areas giving rise to liability are fairly small. I hope that, in pursuing any further amendments either now or at a later stage, noble Lords will take account of that.
§ The Duke of Montrose
Before the Minister sits down, I seek further clarification. As I understand it, the question of animals not belonging to a dangerous species is not necessarily covered by the law of negligence. The information available to me is that strict liability is imposed. The keeper is liable for damage caused by such an animal if that damage is of a kind which the animal, unless restrained, would be 1494 likely to cause or which, if caused by the animal, would be likely to be severe. Unless one's animals are tethered, one will carry some liability.
§ Lord Whitty
It may be that I need also to seek further clarification. My information is that it is not just dangerous species that I am talking about; it is animals that are likely to be dangerous. In some circumstances that would include a bull. Therefore, although I suspect that 98 per cent of bulls would not be on access land but in fields well clear of access land, the provisions are clear that, outside of dangerous animals, one would have positively to prove negligence. That would be quite difficult when dealing with sheep or grazing animals on access land. There is a low probability of incidents in those fields.
§ Lord Whitty
In general, I should have thought that the probability of an incident at night-time was dramatically less than in daytime. First, there would be far fewer people involved. Secondly, more animals would be locked up at night-time than during the daytime. There is no specific liability as a result of night access. That would also be the view—in so far as we have ascertained it—of the insurance company.
§ Baroness Byford
I thank the Minister for indicating that he will look at the issue again. Perhaps I may clarify one or two points with him. In earlier discussions he accepted that a stone wall is a natural feature. In order to protect walls from getting knocked by the livestock, farmers sometimes run a strand of barbed wire along the top of the wall. I do not know how the Minister would clarify which part of the wall is natural. Obviously the piece of wire is an integral part of the stone wall. However, it would be more likely that more damage could be caused by the barbed wire part than the actual stone wall. Perhaps he would think about that. Quite a lot of farmers use barbed wire along the walls. Stone walls are not then the easiest of things to negotiate.
The Minister referred to dangerous animals. The instance that I gave of him was not of dangerous animals in our own fields. That was the tragedy. Our dog was elderly. She was at the other side of the field and did not see the cattle coming across. It was mothers with young calves. The mothers turned on the dog because they thought she was a threat to the calves. Therefore, it is not just a question of the animal itself being dangerous; it is sometimes that a mother wants to protect her calf if she is suddenly confronted with something she is not expecting. As we are returning to the question of access land, and particularly the question of dogs on access land, it is an issue that the Minister might consider before we come back on Report.
Perhaps I may take up my noble friend's point on night-time access. I am somewhat surprised that the Minister does not think that there would be greater 1495 difficulties during night-time access when people are unlikely to know their way around fields or physically to see as well as they do in the daytime. That is an issue for the Minister to discuss before we come back on Report.
May I suggest, in all sincerity, on the question of premiums that I think insurance companies will look again at those whose land is declared access land or which falls within that area. They will demand an increase in premiums. They will certainly be very wary of such land.
The Minister referred to what happens on existing land, particularly National Trust land and other organised land. What we are suggesting is that many people will go at different times. It will be very informal. My concern is that the difficulties that may arise are unquantifiable. I find myself in sympathy with the Government on that point. But one should not compare the position now with how it may be in the future, particularly if many more people take up the opportunity to go on to access land.
Perhaps I may make another point. The noble Lord, Lord Greaves, reflected what is happening in society today. When accidents occur, people tend to say, "We will sue". The Government should be aware of that point. In the past, when something minor happened, people did not report it. They received first aid where they could and went about their business. Unfortunately, in this day and age people are much more aware of what is possible. I, too, am concerned about "No win, no fee".
I hope that my comments have been constructive. The Government have to address a large problem. I am grateful to the Minister for indicating that he will look at the matter again. I hope that I have highlighted one or two aspects that he might consider before we reach the next stage of the Bill. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 199 to 202 not moved.]
Lord Addington moved Amendment No. 203:
Page 8, line 21, at end insert—
("() The occupier of the land is not liable if he accidentally injures another person on his land by the legal discharge of firearms in the course of land management duties.").
§ The noble Lord said: With this amendment we come back to the question of night-time access and to the dangers of lamping, a subject on which I have read some incredible literature during the course of the proceedings on the Bill, with people being shot when they are wandering around on moors. It is a probing amendment. I am trying to find out what the Government think the legal position will be.
§ The amendment was inspired by some of the briefing material I received. I would be flippant if I said that the uplands of Great Britain might look like a wild west shoot-out, with bullets zinging past one's ears every time one goes out. It is not like that. Another description would make it sound like a break from Colditz, with searchlights coming down as well. What 1496 is the situation? Are people being hit now? If we are managing to hit livestock and buildings, we should know about it. If no one has heard about it, we need not worry too much. We can then consider it to be a side issue. I am assured by many noble Lords that the people who are doing this are experts. The chance of a bullet taking a deflection and hitting someone a mile away is astronomically small. I advise those who believe that you have to have some good luck to counterbalance your bad luck to buy a lottery ticket straightaway.
§ I do not think that this is a serious situation, but if the Government can give an assurance that if something of this nature were to happen by accident, no problems will be encountered, I am sure that we shall be able to forget about it and move on to other parts of the Bill. I beg to move.
§ 7.15 a.m.
§ Baroness Farrington of Ribbleton
As the noble Lord has just said, Amendment 203 proposes the exclusion of liability for injuries caused accidentally by firearms used for land management reasons.
In these circumstances, we are discussing a question of negligence rather than occupiers' liability. There has been consensus so far that landowners should remain liable for damage or injury caused by negligence in the way in which they conduct their activities. This must be right, especially in respect of firearms, which are dangerous. We believe that few people would understand if we absolved those using them from taking due care.
Responsible landowners will close their land during a period when game shooting is taking place and therefore the situation should be no different from that which obtains at present. So long as the landowner has properly notified the closure and the guns take the normal care that would be expected of them, it is highly unlikely that he could be claimed to be negligent because of an accident involving a trespasser on his land.
We know that land managers are worried about lamping at night when there are nocturnal ramblers on their land. I can understand those fears, although the experience of the National Trust indicates that such fears may well be exaggerated. The National Trust carries such controls at night on its land where night-time access is permitted. The trust recognises the need to exercise care, but so far has not needed to close land. If there are genuine problems with lamping and access, the proposed system of closures and restrictions is the way to deal with them.
Mercifully, there are very few accidents involving firearms and third parties in the countryside because of the care that landowners and managers are scrupulous in exercising. We can see no reason why the right of access, with the safeguards that we have put in place, should alter that. In the rare cases where there are accidents, if the landowner or manager has exercised due care, he cannot be held to be negligent. But if he is negligent, it must be right that he bears the consequences. This amendment would have the 1497 unfortunate effect of absolving landowners and managers from all liability in respect of accidental injury to third parties on their land from firearms, whether or not due care had been exercised. This would be tantamount to condoning accidents caused by carelessness, which we are quite sure, having listened carefully to the noble Lord when he moved the amendment, was not his intention. I hope that, with those reassurances, he will feel able to withdraw his amendment.
§ Lord Addington
As I said, this is a probing amendment and I have no intention of pressing it. I think that the answer given by the Minister states that if the activities are conducted in the customary careful manner, taking all reasonable precautions, someone who behaves in a sensible manner will not be endangered. Furthermore, there will be no legal comeback. That is what I hoped to hear on this matter. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 13, as amended, agreed to.
Earl Peel moved Amendment No. 204:
After Clause 13, insert the following new clause—