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Viscount Bledisloe: My Lords, if the government amendments are accepted--and, at least in a modest way, we are grateful to the Government for bringing them forward-- a two-pronged situation would arise. First, in certain respects, the Bill will wholly exclude a duty in respect of certain natural features on the land and in respect of certain waters and gates, etc, when they are being used properly.

Secondly, by reason of Amendment No. 77, in other cases where the duty is not wholly excluded, the court will have to perform a balancing act to decide whether or not there should be a duty. In performing that balancing act, the court would take into account the factors set out in Amendment No. 77; namely, whether the existence of a duty would place an undue burden on the occupier, and the importance of maintaining historic features as set out in the code.

I fully acknowledge that these amendments improve the Bill. As I said, we are grateful for that. However, they still leave considerable problems. It must be remembered that it is more important to an occupier that the prospect of claims is eliminated rather than an offence is created, in pursuit of which he will probably

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succeed at the end of an expensive trial. Where the duty is wholly excluded, there can be no claim. But where, as in the second part of Amendment No. 77, the question of whether or not there is a duty depends on the view which an individual judge takes of the balancing between those factors and, presumably, the interest of the plaintiff in receiving compensation, then the occupier is faced with a trial.

No one can know what view the judge will take until all the circumstances have been investigated. Therefore, the occupier will be faced with the prospect of a trial, probably at the suit of a plaintiff who is not good for the costs even if the defence succeeds. Inevitably the occupier will be under strong pressure to pay something in order to get rid of the claim rather than to incur costs which he will probably not get back. In addition, of course, he will face the risk of losing. For that reason, the aim of the Bill should be to exclude a duty. If a discretionary duty remains, that still imposes a substantial burden on the occupier.

I venture to suggest that there are two unsatisfactory features in Amendment No. 73. First, the amendment only exempts liability for a gate except by proper use of a gate. Let us look at the scenario where a gate is on access land but is never used by the occupier. It is of no use to him because it is not situated on a route that he now needs to take. Therefore, the occupier does not need to repair it. A man exercising his access right opens the unrepaired gate which then falls over and injures him. In one sense, the man is using the gate properly, but the occupier has no need to use it. I ask the noble Lord to explain why the occupier should have to repair that gate--a gate which he does not use and which he will put into repair only for the benefit of people who exercise access rights.

The second defective part of Amendment No. 73 relates to features other than gates and waters. The amendment exempts liability only for natural features, which are closely and narrowly defined, and are such items as trees and shrubs. I suggest that the proper exclusion should apply to anything which is on the land, at least if it is there in the ordinary course of the use of the land--a shed that the farmer has put up for his use. I am prepared to concede that there should be no exclusion where there is something very odd on the land such as a rocket site or something like that. But liability should be excluded in relation to the ordinary features that one would expect to see on land of this kind, whether or not they are within the definition of "natural" contained in the Bill.

My Amendment No. 75A seeks to enlarge the list of matters so as to achieve that result. It exempts liability for all houses, buildings, erections and so on which were constructed or retained on the land for the purposes of any natural use of the land--farming or whatever it may be.

The main difference--and this is something which only transpired in conversation with the Minister, for which I am grateful--is that I have included there, as one sees, houses and buildings and so on. The Minister said in Committee that there is no need to exclude buildings because they are already excluded. On

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investigation, that refers to the fact that by virtue of Schedule 1(2), land with buildings on it is excluded from being access land, but that is a wholly different point.

Let us take the case where, in the middle of some access land, there is an old and attractive barn or byre which is not much used and which is, therefore, out of repair but which it would be a sad pity to see pulled down. Some young people exercising their access rights may go into the barn and get hurt. They sue, admitting they were trespassers but claiming that there is a duty, as there is, under Section 1 of the Occupiers' Liability Act 1984.

If buildings are included in Section 13 exclusions, then the simple answer is that there is no duty. But if they are not so excluded, then there is an arguable case which has, as I say, to go to trial and, in fact, would probably be settled.

The Minister suggested that that is no different from the situation as it is at present. If somebody gets into that barn now, he has the rights conferred on a trespasser. But with respect to the Minister, his point is not right. First, there is the practical point that, without the access rights, it is very much less likely that anybody would be there. But, secondly, there is the legal point that under Section 1(3)(b) of the Occupiers' Liability Act 1984, in deciding whether or not there is a duty, the court must have regard, among other things, to the likelihood of somebody being there.

Before access was conferred, there was very little likelihood of anybody being in this barn in the middle of this moorland. But now access rights are given, that likelihood has greatly increased. Therefore, the liability of the occupier has, both in practice and in law, been increased.

In my respectful submission, it is vital that that liability is excluded. It is extremely important that we stick to the wording of the Bill which exempts the owner of access land from all relevant claims by someone exercising the access rights, whether or not the incident occurs on access land or in a building immediately adjoining it. I stress that the real worry is that of a claim being brought, and not the ultimate outcome of a claim.

I venture to suggest to the Minister that if he does not accept that point, he is pressurising the occupiers to pull down elderly buildings for which they have no great use and certainly cannot afford to repair, which would surely be a sorry pity. Therefore, I hope that in spite of the somewhat intransigent remarks of the Minister that he was not prepared to go any further, he will, on hearing my explanation, see the force of the point and be minded to include buildings and other ordinary features of the landscape which have been put there in the course of the normal development and use of that land and which it would be a pity to see removed.

3.30 p.m.

Earl Peel: My Lords, I start by thanking the Minister for having at least come some way towards dealing with this very thorny question. In that regard, I declare an

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interest in that the land that I own will be subject to access and, therefore, liability will have a direct effect on me personally.

I was a little disappointed that the Minister has already rejected my amendment before even listening to the arguments that I am going to advance. But having said that, I hope that he will listen carefully now because, like the noble Viscount, Lord Bledisloe, I have something to say on this subject.

I was extremely interested in what the noble Viscount, Lord Bledisloe, said and particularly his legal interpretation of Amendment No. 77.

In speaking to Amendments Nos. 74 and 76, perhaps I may make the following comments. Clause 13 currently exempts occupier from liability for the safety of walkers on access land in relation to "natural features of the landscape". Government Amendments Nos. 72 and 73 extend that exemption to include certain man-made features such as stiles and gates. But as the noble Viscount, Lord Bledisloe, said, there is the caveat that that applies only in circumstances where those are not being used properly, whatever that means. The difficulty is that there will be quite a number of gates and stiles which the owner will have put up, perhaps for his own use, which are not suitable for use by people exercising their rights of access. Is it really, therefore, right and proper that they should be, under the law, made to put those into a proper state to allow people to use them while exercising their access rights? That really is carrying the question of liability far too far.

Furthermore, as yet, government amendments fail to exclude liability in relation to other hazards likely to occur on access land.

As a starting point in examining how those provisions need to be improved, it must be said that the law of occupiers' liability is complicated. The provisions in the Bill, unlike those in the Occupiers' Liability Acts, do not result from careful consideration of the issues by the Law Commission, but from the very real need to resolve the liability problems inherent in the Government's original proposals, as highlighted by the Country Landowners' Association, of which many of your Lordships will be aware.

In trying to sort out the problems associated with the liability regime for access land, the Government have created an entirely new category of occupiers' liability--that for non-natural features, a point mentioned by the noble Viscount, Lord Bledisloe. That brings in its train all sorts of problems, as I shall try to explain.

The precedent before this Bill, both in statute and in case law, has been that liability is not imposed on the occupier for the state of the land where access is of right. As an example, users of highways are specifically excluded from protection under the Occupiers' Liability Act 1984. Such an approach does not remove the occupier from liability for hazards recklessly created, or for negligent activities. What has been recognised, however, is that it is inequitable to place liability upon an occupier when that occupier cannot control access. That is a very important point.

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Indeed, an occupier can owe a duty to a trespasser under the Occupiers' Liability Act 1984. However, the occupier can exclude the trespasser, fence his land or ask the trespasser to leave. In those ways, the owner can require the trespasser to take himself away from a hazard on the land, so reducing the risk of an accident. None of those things can happen where access is as of right, as under the provisions in this Bill. In other words, the owner cannot require someone to leave the land in the interests of his own safety.

Looking at Clause 13, as drafted, there appears to be no logical justification for the division between natural and non-natural features. Many non-natural features are immovable, fixed features, that are longstanding and form part of the landscape. Indeed, features such as dry stone walls often give the landscape the very character which is so valued by the public.

As an illustration of that point, mines--other than mines for coal, ironstone, shale or clay--dating from before 1872 are exempt from the requirements of the Mines and Quarries Act 1954 to have an efficient enclosure, barrier, plug or other device to prevent any person accidentally falling into the mine or entering its outlet. That means that the obligations under the Act do not apply to the several thousand lead and tin mines which were abandoned in moorland areas before that date. Such old mines--some may be medieval or even Roman--form part of the landscape and have not been used in generations for any form of profit-making activity. However, under the Bill, liability could attach to the occupier for an accident in such a mine on access land.

In case there should be any doubt about the extent of these mine workings in upland areas, perhaps I may cite the example of one recent estate audit in the Pennines by the surveying firm Wardell Armstrong. That identified 136 lead mine entrances. During the survey, several previously unrecorded entrances were also discovered. If, as I suspect, those lead mines were abandoned before 1872, the owner is under no duty at the moment to fence them. I believe that the experience of this one estate could be widely replicated, particularly in the North East and South West of England and in Wales.

Presumably, the justification for imposing upon occupiers the new liability for non-natural features is that it is a prudent way to ensure public safety. However, the argument fails on two grounds. First, why should occupiers, who have not invited parties on to their land, and who have no control over the entrants, bear liability for their safety, particularly where no compensation is payable under the Bill? Secondly, as we know, open country comprises about 4 million acres of land. Such land will be occupied by a wide variety of owners, each with differing opinions on the steps necessary to fulfil any obligation on their particular piece of land, and differing resources available to meet any such obligations. Some occupiers may fence the hazards; some will only insure; many will simply not have the resources to take either step. How can that approach be seen as a suitable way to ensure public safety? I believe that, overall, the

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better approach is to follow legal precedent and remove liability from occupiers for all features of the landscape as my amendments propose.

As a final point, there is another problem with the present clause, which I am bound to say is not covered by my amendments but which I believe should be highlighted. Under the provisions of the Mines and Quarries Act, a quarry, whether working or otherwise, can be defined as a statutory nuisance under the Environmental Protection Act 1990 if, first, it does not have a properly maintained barrier to prevent persons falling into it, and, secondly, by reason of its accessibility from a highway or place of public resort, it constitutes a danger to the public. There are many thousands of quarries on land which will become subject to the new right of access. Many of those will not have been fenced to date because they are far away from the nearest highway. However, as soon as the right of access comes into force, they will automatically become potential statutory nuisances because the public will have a statutory right to walk around them.

My amendments would exempt occupiers from liability in relation to these quarries under the Occupiers' Liability Act. However, they would not prevent a local authority taking the view that the quarry amounted to a statutory nuisance. The owner could be faced with enforcement action; for example, he could be required to fence the quarry. I urge the Government to consider this potential problem and to table their own amendment at Third Reading to exclude that possibility.

Overall, the occupiers' liability regime set out in the Bill is deficient. New liabilities will fall on owners unless the Bill is amended. Owners will be put to considerable cost to minimise the risk of accidents and of claims from walkers. That costly action could include undertaking audits of hazards; undertaking risk assessments in relation to those found; fencing hazards; erecting warning signs and taking out additional insurance. In addition, an owner is not entitled to fence common land without the express permission of the Secretary of State. As regards quarries, as I have mentioned, enforcement action by local authorities is a real risk. It is surely wrong for the Bill to expose owners to those risks and expense; for example, in relation to thousands of mines and quarries spread across millions of acres of access land.

I believe that this section of the Bill must be amended in order to allow for a fair and equitable arrangement to be reached which would not impose considerable costs on owners who are being subjected to new access provisions which they did not initiate. The Government brought in this legislation. I believe that it is only right and proper that the Government should remove liability on occupiers for any expense on liability which is caused by the access provisions in the Bill. I beg to move.

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3.45 p.m.

Lord Greaves: My Lords, I shall speak to Amendment No. 72 moved by the Minister and the other amendments in the grouping. I shall speak also to Amendments No. 73A and 73D, which are amendments to the main amendment. My noble friend Lady Miller of Chilthorne Domer will speak to Amendments Nos. 73B and 73C.

I welcome the fact that, to a degree, the Government have moved on the question of occupiers' liability in relation to Part I of the Bill. That is welcome. However, along with the noble Viscount, Lord Bledisloe, and the noble Earl, Lord Peel, I do not think that the Government have moved sufficiently far. I shall speak briefly to the amendments tabled by the noble Earl and the noble Viscount. If I start to speak gibberish, it is because I have spent seven and a half hours trying to drive down the M1. I then had to fight my way into the building through a demonstration and am feeling somewhat shell-shocked.

I substantially agreed with the comments made by the noble Viscount, Lord Bledisloe, on his amendment. However, I have difficulty in understanding the wording, and at this stage could not support it. I do not understand what it means, but perhaps that can be discussed. In Committee, I stated that in general terms I supported the amendment moved by the noble Earl, Lord Peel. Since then, nothing has been said by the Government to change my view. Other things being equal, I am still disposed to support that amendment. Indeed, I agree with everything said by the noble Earl. I shall not repeat that, but merely state the position. It seems to me that there is probably majority support in this House for the Government to move further on this matter. I hope that they will reflect on that and come back to it at Third Reading.

Amendment No. 73D refers specifically to activities which in general terms I shall refer to as "climbing". In Committee and since, those of us who are interested in climbing welcomed the fact that climbing and ancillary activities are included within the scope of Clause 2. Nevertheless, there has been increasing concern that the Government have not yet understood the relationship between people engaging in climbing, abseiling and so on, and the owners of the land on which they climb.

I had considerable discussions in relation to these amendments last weekend with senior people in the British Mountaineering Council--the national representative body for climbers in this country--and my amendments were tabled with its full support. They also meet with the support of the Country Landowners' Association. At an earlier stage a joint letter was sent by the BMC and the CLA effectively asking for an amendment on the lines of Amendment No. 73A.

Rock climbing is an inherently dangerous activity that people undertake voluntarily and deliberately in order to pit their skills and abilities of various kinds--athletic, technical and psychological--against the natural environment in which they find themselves.

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That applies whether we are talking about rock climbing on a short gritstone outcrop in Derbyshire or mountaineering in high mountains.

There is a general principle among the climbing fraternity that the risk of climbing belongs to the climbers themselves; that it should not be the responsibility of owners and occupiers unless they behave in a reckless way, and the government amendment now covers that. Clearly, if someone pulls down ropes while someone else is climbing, they are committing a criminal offence because people's lives are being put at risk. But in general the principle is that the risk in climbing should in no circumstances be the responsibility of the occupiers of the land. Indeed, if it was thought to be their responsibility, climbers would not have access to a lot of crags and cliffs which they presently have access to by voluntary agreement. It is the view of the climbing community that that principle should be embodied in the Bill.

There are growing problems of what I call "irresponsible" litigation, encouraged by lawyers offering to take up cases on the basis that they are paid only if they win. It is a tendency spreading from the United States of America and one which climbers generally want stamped upon. It would therefore be helpful if climbing as an activity, or the crags upon which climbers climb, were exempted from any liability under the Bill.

Another danger is that if landowners and occupiers believe that they have a liability, they may remove some of the features put in place to enable climbing to take place; for instance, posts at the top of crags for people to tie themselves to for abseiling and so forth. Owners may believe that, if they have given express consent to the placing of apparatus or even tacit consent because they are aware that the gear is there, if there is an accident resulting from the failure of that material they may be held responsible.

So these amendments contain three approaches. All three together would be extremely beneficial, but any one on its own would be valuable. First, Amendment No. 73A seeks to apply to rock features the principles set out in the government amendment in relation to water features. Amendment No. 72 says,


    "any river, stream, ditch or pond whether or not a natural feature".

Amendment No. 73A asks for the same principle to be applied to rock features. Indeed, many crags in this country can be walked upon. Some have obviously been quarried in the past but some are absolutely natural. And it is difficult to tell the difference between the two. At the extremes one can say "Yes, that has definitely been quarried" or "That looks as though it never has been". I would love to take noble Lords along Stanage Edge in Derbyshire, which is the biggest of the gritstone edges and is used by over 1,000 rock climbers. Some of it has been quarried for millstone, some for local building materials and some is completely natural. Not including manmade rock features in the Bill will produce a can of worms. It is

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a simple amendment and the one which the climbing community would most like the Government to accept.

Amendment No. 73D applies to climbing as an activity. It simply says that if people are on the land climbing, any accidents that occur as a result are not the occupier's responsibility. That is the position that climbers want and it would be a simple matter to write it into this Bill in relation to access land. The second part of Amendment No. 73D relates to climbing posts and other climbing apparatus. Noble Lords will be astonished at some of the devices climbers use basically to make the crags safer and climbing possible. But many of those devices over a period of time become unsafe. There is a general acceptance within the climbing world that if one uses bolts which have been drilled into a crag in the past--that happens in limestone areas--or an old piton (what climbers call pegs) that has been banged into a crack in the past, or a post at the top of the crag which was put there for people to belay on, to tie themselves to or abseil from, one does it at one's own risk. It is our responsibility to check every time we use it that it is in a satisfactory condition for use.

The danger is that if occupiers of land give consent to the placing of apparatus, or even tacit consent by not removing it, and it turns out to be defective and somebody is hurt or even killed because they used that defective apparatus, unless the liability is specifically taken away from the occupier and placed squarely upon the climber, occupiers will remove such apparatus from the climbs. That will make climbing impossible and thereby undermine the aims of this Act.

Amendment No. 77 contains wording which is causing concern. It says,


    "where the danger concerned is due to anything done by the occupier ... with the intention of creating that risk".

The worry is that that wording could be used against an occupier if he did things in, on or around a piece of rock which in itself made climbing possible. If it is not possible to climb, there is no risk. But, for example, if a path is dug at the top of a crag and access for climbers is made possible, there is a danger that the wording of the amendment could imply that, not only is the occupier liable if there is an accident, but that he actually created the conditions for the accident in digging the path. I am not sure that that is the most serious point being put forward but it is the worry.

I ask the Government to look seriously at these amendments. They relate to a specific activity which is undertaken by perhaps hundreds of thousands of people in this country. It would be a shame if the rights applying to climbers given under Clause 2 of this Bill were not able to be applied properly because of the fears of landowners over liability. It would be an even greater shame if, because of that, there was a spate of litigation or two or three cases which set litigation in train. That in turn may create a climate of hostility and prejudice between occupiers and climbers. At the moment the climate in many areas is one of co-operation and friendship.

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4 p.m.

Baroness Mallalieu: My Lords, I welcome the Minister's amendments and recognise how far the Government have moved on this topic. However, notwithstanding the robust way in which he introduced his amendment, will the Minister reflect on whether the balance is right? It seems that in Amendment No. 73 the Government have accepted that occupiers' liability should be removed from some non-natural features. Those set out appear to be either boundary or perimeter features.

We would all accept that a landowner should be liable where he creates the problem, but the noble Earl, Lord Peel, pointed to a real difficulty. Indeed, some real problems would remain if the Government's amendment were accepted. Mention has been made of some non-natural features which are likely to cause problems, in particular the disused quarries, the mineshafts, of which there are a great many, and, as regards the amendment tabled by the noble Viscount, Lord Bledisloe, buildings such as old barns. All those features are likely to prove a magnet for children and the Government should have that uppermost in mind.

At present, there is no duty on landowners to fence mine entrances if they were abandoned before 1872, as many were. The Bill, if it becomes an Act in this form, is likely to impose a duty on those landowners to fence, or otherwise fill in, what would seem to be an enormous number of possible hazards. Under the Bill as it stands, the costs would be borne by the landowners.It cannot be right to leave such features, which were not created by landowners and which are not being used by them for the purposes of managing their land, to become a serious problem and expense for them. Even if the Government believe that the amendment tabled by the noble Earl, Lord Peel, goes too far, surely, there are ways in which such clear hazards could be exempted from occupiers' liability. I hope that the Minister will not close his mind to what is said in the debate.


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