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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.
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.
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.
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.
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