For the information of the House, this is a Bill rather than a motion. The Second Stage of this Bill is being treated in the same way as a non-Government motion and the same procedure will apply for speakers. Time allocations are different to motions. The overall time limit is two hours. The time allocated for the Minister and the proposer of the motion is 15 minutes and the proposer will have ten minutes to reply at the end of the debate.
Protection of Occupiers of Land Bill, 1994: Second Stage.
Question proposed: "That the Bill be now read a Second Time."
The purpose of the Bill is to amend the law in relation to the liability of farmers and other property and land owners concerning all accidents occurring on their property. Farmers are currently liable for all accidents occurring on their lands, even if the person who has an accident and is making a claim is trespassing. This is totally unacceptable and this Bill attempts to change it. Farmers and property owners should not be asked to take the legal and financial risks involved. The Bill will regularise the situation. We have a long history, a Chathaoirligh, of allowing sporting and recreational events to take place on farms. It would be a pity if these activities were curtailed, but we are currently facing a curtailment of opportunities for such activities on the land. However, this Bill will change that.
Many farmers have expressed their concern at the present ludicrous situation. Traditionally, there is a high level of goodwill between the farming community and the various sporting organisations. The opening of our lands for anybody to enjoy for recreational or sporting activities is a tradition which goes back many centuries. This is now under threat. This issue has been a concern of my party for some time. In November 1992, we proposed a motion calling for a change to this legislation. My colleague in the other House, Deputy Deenihan, pioneered a lot of research in this area and has produced in the Dáil a Bill similar to ours and has campaigned at length to change the law. I take this opportunity to pay a special tribute to the Deputy for his work in that area.
We are undergoing the biggest crisis in unemployment in the life of the State. One of the ways of creating durable employment is in the tourist industry. We are encouraging farmers to develop agri-tourism and are inviting tourists to the countryside to enjoy the scenery, to climb mountains, to see our rivers, visit our national monuments — we had a debate on the difficulties arising because of the absence of this legislation during the debate on the National Monuments Bill — and invite them to visit our old castles. These activities are in jeopardy at present and will be eliminated if farmers decide, as they must eventually do unless this Bill is accepted, they can no longer tolerate people coming on to their lands because of the situation prevailing with regard to liability.
The Bill accepts that the occupier owes it to a person invited on to that property to take reasonable care to protect that person; there should be proper insurance cover for that eventuality. However, we do not accept they have a responsibility for those who, without permission, come onto the land or who are trespassing. It is amazing that this law has not been changed, as is the case with many other European states, including the United Kingdom and Northern Ireland.
There has been a dramatic increase in the level of personal injury claims. We are developing a mentality which is almost making an industry out of litigation. Some local authorities are only too aware of the burden of claims for personal injuries placed upon them. Indeed, many Members of this House would know of it. It is generally accepted that many of these claims are fraudulent, but this is hard to prove. The farming community is afraid that such an approach will spread to people who go on to land and that people will specifically go on to farms and fake injuries to make claims. While I accept there should be adequate checks and balances within the insurance system to look into these claims, the insurance companies tell us of the difficulties they experience in trying to ensure that all claims paid are genuine.
The law in this area is still governed by Common Law precedent, as established by judicial decisions handed down in court cases. The situation has been updated in the United Kingdom and Northern Ireland. They have taken care of the problem and regularised the situation by statute law, namely the Occupiers Acts, 1957 and 1984. It was tidied up in the UK ten years ago. It is 35 years since they first tackled the problem. A farmer in England, Wales or Northern Ireland has available to him a clear legal statement of his rights, obligations and potential liability towards authorised visitors, and to a lesser extent, trespassers.
This Bill caters for the protection of occupiers of land. This includes structures on the land, such as posts and fencing as well as buildings, that would be purely subsidiary and ancillary to the land.
The Bill deals with both trespassers and those allowed onto the land with the occupier's permission but with no material benefit for the occupier, such as members of sporting organisations and so on. The Bill provides that the occupier of land will have no responsibility for trespassers, but he or she will not be entitled to intentionally harm a trespasser, except in necessary self-defence, defence of another or in defence of his property. Regarding people who are on the land with the permission of the occupier, the occupier shall not be under any obligation to the individual, except that he shall be obliged to give warning of the existence of any concealed dangers which exist on the land and which are known to him.
If the present law continues, most landowners will have to choose between allowing access to their property and running the risk of civil claims for breach of the common duty of care, or, on the other hand, refusing access. There is a growing tendency in recent times to refuse access, and unless the law is changed, this will be the norm. If access to the land is limited by landowners because of the fears of being sued, the potential of Ireland as a major destination for activity type holidays will be seriously impaired. I am sure the Minister is well aware of the concerns which all property and land owners have regarding this area, and it has been well highlighted in the past.
Farmer organisations have been especially vigilant, and I commend them for their work in this area. I also commend the tourism industry, the country's sports associations, such as the Federation of Irish Field Sports, the National Association of Regional Game Councils and all bodies which have an interest in ensuring that those who enjoy country field sports of every kind, including walking and picnicking, continue to have access to our beautiful countryside, that tourists continue to have such access and that farmers and other property owners do not feel that they are put under such risk of future claims and unnecessary demands on them that they have to bar access to their land.
The Bill seeks to bring clarity to the area of liability of occupiers of land. The duties owed to licensees and trespassers are clearly stated in unambiguous terms. Invitees are not included in the Bill. The duty owed an invitee is a high one. The occupant must protect the invitee from unusual danger of which the occupant was aware or ought to have been aware.
The Bill is to the benefit of the occupiers of the land in so far as it states the duties that they owe. It is also of benefit to the licensee and the potential trespasser, as they know exactly what duty is owed to them, and it acts as a disincentive on the part of the trespasser to bring a speculative claim against the occupier of the land.
Regarding the sections to the Bill, section 1 is the short title to the Bill. Section 2 deals with interpretation. Section 3 deals with the entry of land. It states the occupier of land should not be under any obligation to a licensee to make it safe for use by him or in regard to anything that may be in, or on, or over the land, and shall be obliged only to give warning of the existence of any concealed danger which exists in the land and which is known to the occupier. The section also determines that the occupier of land owes no duty of care to a trespasser, but is not entitled to intentionally harm a trespasser except in necessary self-defence or in defence of another person or in defence of his property.
Section 4 ensures that nothing in the Act shall restrict, prejudice or affect the functions of the Minister for Finance or the Commissioner of Public Works regarding national monuments or any particular such monument, and section 5 states that the Act shall apply to State land, which is an important area. This section would also cover land owned by local authorities or similar bodies, such as harbour boards and so on.
There are many areas regarding this issue which cause concern — for example, people who travel over occupier's land to get to seasides. If people are debarred from going over such land, access to many quiet seaside resorts which people frequent will be limited. Most of the bigger resorts have public access, but many of our most beautiful resorts have private access only, or access over land owned by individual property owners or by the State or local authorities.
On behalf of the farmers and land owners I appeal to the Minister to accept this simple but comprehensive legislation. It has been requested over many years. The House was promised it in a debate on the 4 November 1992, almost 18 months ago. I recall that the House debated the issue at length on the night that the Dáil fell. The then Minister promised early legislation. My party has had discussions on this issue and has raised it in the House on numerous occasions. My colleague, Deputy Deenihan, has raised it on numerous occasions in the Dáil and still nothing has happened.
I therefore appeal to the Government to allow the Bill proceed to Committee Stage where it can be amended if necessary. In the interests of law reform there should a unity and an openness by the Government in accepting the Bill. The Fine Gael Party has received widespread support for the Bill from all of the national farming organisations and I appeal to the Minister to carefully consider the party's views on the matter.
I compliment Senator Neville on a speech which was reasonable in tone and which indicated that he has clearly given some thought to the problems which require to be addressed in the area of occupier's liability.
I fully appreciate the concerns which prompted the Senator to introduce his Bill and I am acutely aware of the anxieties felt by the farming community especially as a result of the unsatisfactory state of current law on this matter. However, for the reasons which I will outline, the Government will not be accepting this Bill.
This should not be interpreted as casting any doubt on the Government's commitment to change in the area. The Programme for Competitiveness and Work makes it clear that the Government will bring forward legislation during this year to reform and update the law in this area, taking into account the Law Reform Commission's report. Within my Department a good deal of preliminary work has already been done and I am simply awaiting publication of the report of the commission in order to complete my proposals and seek Government approval for the drafting of an appropriate Bill.
In this context, I stress that the matters under discussion are of broader import than the text of the Bill now before the House would suggest. This is not just a problem for the farming community, although I would concede that farmers see themselves as being in an especially vulnerable position. I have met with representatives from the farming organisations in the past and I have been struck by the genuine concern of those organisations to ensure that farm land continues to be available to the widest possible extent for a variety of sporting and recreational interests. Indeed, I will be actively canvassing their views once the final report of the Law Reform Commission is published, which will be, I understand, in the course of the next few weeks.
However, I emphasise again the importance of bearing in mind that the law of occupier's liability is concerned with the duty of care owed by all occupiers of premises or land towards entrants, whether invited or uninvited, who suffer either personal injury or property damage during the course of their visit. It is concerned with striking a balance between a wide range of competing interests and should be seen in the context of the reasonable expectations of both occupier and entrant in a variety of domestic, social and commercial settings.
It was because the Government of the day recognised the fundamental complexity of this issue that a decision was taken to invite the Law Reform Commission to examine the law on occupier's liability and to make recommendations as to possible future courses of action. In its preliminary report, which ranged widely over the relevant law in other countries, the wisdom of entrusting this task to the commission was demonstrated clearly.
The main recommendations of the commission, which are of course provisional, may be summarised as follows: legislation should provide for two classes of entrant onto premises — visitors and trespassers; the term "visitor" would essentially cover the old categories of invitee and licensee. The duty owed to such an entrant would be the common duty of care and circumstances relevant to the discharge of such a duty would include the degree of care ordinarily to be looked for in such a visitor. Warnings may also be sufficient to relieve an occupier from liability, provided that in all the circumstances they were enough to enable the visitor to be reasonably safe; the duty of an occupier towards a trespasser would be not to injure him intentionally and not to act with gross negligence towards him. A special duty focused on the concept of reasonable care would apply in the case of foreseeable child trespassers under the age of 15; an occupier would be free to extend or reduce his statutory liability to an entrant by agreement or notice although, in the case of a reduction, such reduction must, in all the circumstances of the case, be reasonable and an occupier would not be under any obligation to discharge the common duty of care to a visitor in respect of risks willingly accepted by the visitor as his.
The recommendations also cover more technical issues relating to an occupier's liability for the negligence of an independent contractor employed by him and the duty of an occupier, in a contractual situation, towards a "stranger to the contract".
The commission's recommendations must be seen against the background of the existing law on this issue since it is only through some understanding of that law that a genuine appreciation of the context within which change is being sought can be acquired. Apart from contractual entrants, where the general rule is that the rights of such entrants are to be regulated by reference to the contract, persons who enter onto property have traditionally been classified into three categories — invitees, licensees and trespassers.
In general terms, a person is an invitee where his or her presence on the property is likely to convey a material benefit upon the occupier, for example, a person who enters a shop in order to buy goods. Here, the duty of the occupier is to use reasonable care to prevent damage from unusual dangers of which he knows, or ought to know.
By contrast, a licensee is a person who is permitted to be on another's land but whose visit does not materially benefit the occupier, for example, a person who makes use of a public park or playground. The occupier's duty in this case is essentially to warn of concealed dangers of which he or she is aware.
Finally, we come to the category of trespasser which, traditionally, was seen in terms of a person who goes onto property without an invitation of any sort and where the duty of the occupier was limited to not injuring them by intentional or reckless conduct.
This formulation of the duty towards a trespasser did not, of course, take into account that trespassing activities could vary from the very innocent, particularly in the case of children, to the blatantly criminal. In consequence, over the years, the courts have tried to ensure that deserving child plaintiffs were not denied a remedy at law. It was in a case in the mid-1970s which involved injury to a child trespasser — McNamara v. Electricity Supply Board — that the Supreme Court articulated clearly the legal basis of the duty which a defendant might owe in such circumstances. In summary, the kernel of the judgment was that the occupier owes a duty to trespassers whom he or she could reasonably foresee and that the duty in such a case was to take such reasonable care as the circumstances demand.
The McNamara case, however, did not explore the issue as to whether a similar duty applied in relation to invitees and licensees and subsequent cases have not brought about a clear resolution of this matter. In the absence of much statute law touching upon this issue — the Hotel Proprietors Act, 1963 being a notable exception — we essentially have a situation where the law has evolved as a result of various court decisions in the last few decades. Many of those decisions have dealt with the position of trespassers and appear to suggest that, in many ways, trespassers may aspire to a higher duty of care than other more lawful entrants onto the land. Clearly, this is an unsatisfactory situation both for landowners and for lawful entrants alike.
Because of the worry which the current state of the law engenders, it is sometimes easy to forget that not every action for damages which comes before a court will necessarily be successful. Similarly, it should not be automatically presumed that, in applying the current law to the material facts of an individual case, the courts will inevitably come down in favour of the plaintiff. I think it is fair to say that the courts are not in the business of making substantial awards to plaintiffs whose claims lack substance.
There can be very few Senators who are happy about the current state of the law on occupier's liability, but that is not the real issue we are debating tonight. If it were, I believe there would be a fair degree of consensus on the matter and the rationale for this debate would be non-existent.
What is, however, the real issue is the path of reform which we should choose to follow. The law here is governed by decades of common law tradition. It is clear that this tradition is no longer serving us as well as it might. While statutory intervention is not always necessary in order to clarify matters, it can sometimes serve a useful purpose. In the area of occupiers' liability in particular, it is obvious that it would help to resolve much of the uncertainty which is at the heart of so much of the unease and disquiet which informs the debate on this topic.
Aside from the valuable material which the Law Reform Commission's consultation paper has already offered to us, there are models for reform in other common law jurisdictions which have also been examined for the help they can offer. The model which exists in England, and has been followed in a number of other countries, would seem to be working with a reasonable degree of success. In that country, in the 1950s, the state of the common law relating to the liability of occupiers of premises to their visitors had given rise to such a degree of criticism that the Lord Chancellor felt obliged to refer the matter to the Law Reform Committee. The recommendations made by that committee were in substance provided for in the Occupiers' Liability Act, 1957.
The main change effected by that Act was to replace the rules of the common law under which the duty of an occupier differs according as the visitor is an invitee or a licensee. Section 2 (1) of that Act provides that the occupier of premises owes the "common duty of care" to all his lawful visitors. That term is defined as the duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purpose for which he is permitted or invited to be there. An analogous duty has been extended to trespassers by the Occupiers' Liability Act, 1984.
This approach is clearly a very flexible one. The duty of care required will inevitably vary with the circumstances so that in the normal course of events there will be an expectation that a child will be less careful than an adult and that an adult will be alert to any special risks incidental to his visit. Under the English legislation, it is also open to non-business occupiers, or business occupiers who allow visitors to enter free of charge, to historic sites, for example, to exempt themselves from liability. Landowners may also relieve themselves from liability in respect of risks which are willingly accepted by persons going onto the land. Furthermore, in appropriate cases, the landowner may also discharge the duty of care which he may owe to entrants by erecting warning notices.
Many American states also have legislative provisions relating specifically to entrants who use land for recreational purposes. The feasibility of some such provision in this country is also being explored by me.
I now turn specifically to the Bill which is the subject matter of this debate. A Bill in similar terms was introduced by Fine Gael in the Dáil last year and the criticisms which I voiced on that occasion remain valid. Indeed, the Law Reform Commission was able to consider that Bill in the context of its consultation paper. As it points out, it reduces the duty of care to lawful visitors to that at present owed to licensees and it removes from an occupier any obligation not to show reckless disregard for trespassers, the only duty being not to harm such an entrant intentionally.
Unfortunately, matters are rather more complex than would appear from a perusal of Senator Neville's Bill. There is a need for reform in this area but it has to be more substantial than is provided for here. The Bill before us largely preserves the traditional distinction as between trespassers and licensees. However, it is silent as to the duty owed to invitees and I must admit to being somewhat unclear as to what their situation would be were this Bill to become law.
The Bill is also a very blunt instrument which does not distinguish between the position of a child who may go onto property to rescue a ball and a burglar who comes with the intent to steal. While there may well be some who take the view that young children, if injured by the reckless actions of an occupier, should not be entitled to seek to recover damages, I am not one of them and I am sure that many who pause to consider the matter carefully will also be worried by the course of action proposed here.
On matters of detail, there are some problems with the interpretation section of the Bill; there is no attempt to define what is meant by an occupier nor is there any recognition that claims can arise other than in relation to land. Also, the Bill, because of its abbreviated nature, fails to consider fully all the various ramifications of the occupier-entrant relationship. For example, where the occupier of premises is bound by the terms of a contract to permit persons who are strangers to that contract to enter onto his premises, there is the question of the nature of the duty in that case. There is also the question of the liability of a landlord where he or she may be under an obligation to keep in repair the premises occupied by the tenant. Again, if legislation is to be meaningful and helpful in this area it must address these issues or, at the very least, it must be made plain as to why it is not addressing them.
I do not wish to be unduly harsh in my criticisms of this Bill. I recognise what Senator Neville is attempting to do and I am sympathetic to the concerns which motivate him. However, I do not favour the precise approach which he is taking to solve what are very real problems. I am in favour of legislative reform in this area. I want landowners to have a clearer sense than they have at present about where their responsibilities lie in relation to those who come onto their land.
I intend to do as much as is feasible to ensure that land can continue to be available for recreational pursuits without fear of vexatious litigation. However, if the law in this area is to be got right, it is necessary to put together coherent legislative proposals which will deal with all the issues raised by this matter. Such legislation will be brought forward by me this year and I look forward to debating it in this House.
I will not use all of my ten minutes because I have only a few words to say. They are supportive of this Bill and the tenor of its objectives. The Minister has already complimented Senator Neville on the purpose of this Bill and the moderate tone of his words, which I also support.
However, it seems that there is a serious need for urgency in this matter. It is outrageous and ludicrous that we have allowed a situation to continue which forces occupiers to block access to beaches, farms, rivers and the countryside. Such access has been traditional and established over many years. Good citizenship should not be punished. An act of generosity which has been traditional in Ireland should not be banned because of the way the law would appear to have moved in recent years. We have allowed this situation to develop because we have not stressed this urgency.
Having listened to Senator Neville and the very committed concern which he expressed, I came here tonight to support this Bill. However, I also listened to the Minister who referred to Senator Neville's Bill as being simple. This Bill will need some further comprehension. I gather that the Minister, in his words, has responded to the urgency which Senator Neville has placed upon him. However, I was surprised to learn only now that a similar Bill was introduced last year in the Dáil. I am delighted to hear the Minister giving us his word that a Bill will be initiated this year and will depend on the Law Reform Commission's report.
I stress the need for urgency. The situation which Senator Neville has described here is placing many of the traditional rights of our people at risk and this Bill is clearly long overdue. However, I find that this has been put on the long finger for many years although Britain and many other states in Europe have introduced legislation to attempt to solve it.
I was impressed by the Minister's words tonight and the care which he has taken to ensure that he will act immediately on the Law Reform Commission's report which is expected in a few week's time. I congratulate Senator Neville for drawing attention to this need for legislation and I also congratulate the Minister for responding. We in this House have learned in the past that on occasions Ministers have not always been able to find the legislative time to get these Bills passed. I urge the House not only to encourage the Minister but to insist that he demand Cabinet and Oireachtas time for the legislation which he promised today, I suppose because of the urgency of Senator Neville's insistence. I believe that this Bill will be introduced this year. I welcome the Minister's commitment to do so. On those grounds, I think Senator Neville's Bill will have achieved its objective, if not today then certainly later on this year. I congratulate the Minister on his response.
We are not going to divide in this House on whether it was right for Senator Neville to present a Bill or whether the Minister should have had an opportunity to do so. The issue is bigger and much more important than that and I welcome the Minister's positive response. He has given the House an undertaking that he will bring in a Bill; I welcome that. This matter is very important. We all come from different walks in life and those who are interested in the tourist industry believe that tourists should be able to climb mountains and so on. That is a point of view which can be commended.
I commend the Minister for having consulted with the farming community. However, he said that he had "been struck by the genuine concern of these organisations to ensure that farmland continues to be available, to the widest possible extent, for a variety of sporting and recreational interests". The Minister must be given enough time and must consult with the parliamentary draftsman. The Bill must have open and honest debate and everybody's concerns must be on the table.
I am glad to see tourists using our beaches and mountaineering — which is a big part of tourism development. However, I also see that farmers have a genuine problem. I am a farmer, of a kind, myself. A farmer must be protected in case he sprays his land and somebody goes onto the farm uninvited and claims damages, injury, or whatever, afterwards. A farmer must be protected in case somebody travelling on the road, opens a gate to go into a farm to spend a penny and falls into a drain or injure themselves.
Farmers must be consulted in the widest sense and their interests must be totally protected. There are a hundred and one different reasons. I have a farm which is beside a golf driving range and it is common to see missiles coming across. There is no fear there but I am thinking of all the different aspects of the problem which can arise. I had an experience where dogs came onto the land and chased an animal. The animal went across a ditch, was injured and had to be put down. Where does one go for compensation in such a case? Where is the farmer's protection?
This is so wide an issue that, while I believe Senator Neville is sincere in bringing the Bill before the House, the Minister must have time to make a proper study of the matter. All the interests involved have to be protected. These include tourist interests, national interests, landowners and the problem of conacre farmers. In my own county there is a substantial number of conacre farmers. There are also people with small holdings who have to emigrate and lease their land for a longer period. All aspects of the problem will have to be looked at.
I see a great difference between farm land, beaches and mountain ranges and these should be categorised for access purposes. When the Bill is being prepared the widest possible consultation should take place with all interest groups. The bottom line is that the landowner who is responsible must be completely protected from any kind of damages arising directly or indirectly. The origins of claims are too numerous to mention but practical farm work involves drainage, farm machinery, sprays, pesticides and other items. A dangerous animal may attack someone in a field. It is not enough to expect the farmer to put up a notice and expect everything to be all right thereafter. That is not a solution. The landowner must have a protection that is clearly understood by everybody. This is an important, fundamental right of a citizen and the land he owns. I welcome the opportunity to express my strong views about this.
I know from his contribution that the Minister understands it is too simple to come in with a proposal which goes through when it is seconded. Everybody in the House would warmly welcome a Bill of this nature, which is long overdue. It is clear that the Minister is interested in putting a Bill before the House that will be broadly welcomed and will cover the situation that has been awaiting legislation for so long. I thank the Minister for coming to the House.
As one of the co-proposers of this Bill I am very interested in what the Minister has to say. The absence of a Bill in relation to the liabilities of farmers, property owners and trustees of playgrounds, public authorities and others, for all accidents occurring on their property — and in particular where the injured party is a trespasser — is an absolute disgrace. This Government and the previous Government can be accused of gross negligence and incompetence for neglecting badly needed amending legislation. Apart from political organisations, numerous groups have pressured this Government and the last Government to bring forward the necessary amending legislation but all to no avail.
There is great public disquiet in many areas regarding this issue. If we look at our neighbours in Britain and Northern Ireland we find that legislation is in place whereby property owners have a clear understanding of their liabilities in respect of claims. In order to convince the Minister and the Government of the importance of this issue I will attempt to outline the many categories that are badly affected. They include all property owners, all sporting organisations who provide facilities for the general public, public parks, rights of way, and other areas frequented by the public.
For the past ten years the general public have become very conscious of their rights to make claims against other people. I accept that due care should be taken by owners of property who allow the general public to frequent their property, but I feel strongly about claims taken against property owners by people who injure themselves while trespassing on that property.
When we are talking about liabilities we must ensure that reversible liability is established as well. If someone comes onto my property and damages it, it should be clearly established that I am entitled to compensation. I wish to point out to the Minister the damaging effect that this issue has on agri-tourism. Heretofore farmers allowed easy access to their hills, rivers, bogs, forestry plantations, farmyard enterprises and their beautiful countryside sites. With so many people, particularly from our cities and towns, visiting the country, farmers and other property owners feel that such is the risk of potential claims and unnecessary demands upon them that they now safeguard themselves and their families from public liability claims by closing their property to access by the general public. Would the Minister blame them?
Another matter I would like to bring to the Minister's notice is the problem of public parks and children's playground areas which are essential facilities in any built-up area and are widely used by the general public. So many claims have been successful that the cost of public liability insurance is prohibitive. Most of these parks are under the control of either local committees or trustees. We now find that some are being closed and in other cases facilities for children have been removed, rendering these parks useless in certain cases. This is as a direct result of the present situation.
I would like to give an example I found in our own town. We have a very nice park in Gorey for which public liability insurance started at £1,000. Within a period of five years the insurance company raised it to £3,000 so the committee, mostly made up of trustees, shopped around but could not obtain cheaper cover. In fact, other companies seemed to increase the premium quoted. As a result of that the committee removed all the facilities for children and were advised by their solicitors to close the park. They then came to the county council, of which I am chairman, and we agreed to carry the can just for this year. This facility in Gorey is an important one. If the law is not changed soon I can see a situation arising where parks and playgrounds around the country will have to close because of high claims and high premiums for public liability cover. Nobody will be in a position to raise that type of money to pay for insurance. It is as simple as that.
The same situation exists in most towns. Trustees are in a delicate position because claims can arise for £100,000 for an injury to any child, and they are liable if the insurance will not cover it. Many insurance companies find it extremely difficult to quote for any public liability. They see the red light immediately when you try to move from one insurance company to another and they are not prepared to accept it.
I would like to deal with national monuments under the control of the Office of Public Works. A large number of these monuments, such as castles, are situated on farmers' private property a long way from a public road. No doubt the Minister is familiar with the difficulties faced by the Office of Public Works — the State body responsible for our national monuments and national parks — in relation to claims. The Office of Public Works is dealing with public money but what about the ordinary farmer or landowner with one of these monuments on his land which the public are continuously crossing to gain access? Who is carrying the liability for any claims that may be taken in such cases? I am reliably informed that the farmer is responsible as far as access is concerned. It is all right for the Office of Public Works to carry their share because they are dealing with public funds but, unfortunately, the ordinary farmer is liable for any injuries sustained by people while crossing his land. This is a completely unacceptable situation and one that will result in these monuments being fenced off and signs requesting the general public not to cross such lands. This would be an awful loss as some of our beautiful historic monuments will be fenced off thus barring the public from access to our own heritage. This would be unacceptable.
Farmers with national monuments, which could be described as Government property, situated on their lands are at great risk. They are seeking a statutory provision which will exempt them from any liability or duty of care in respect of trespassers, people who use their lands for sporting or recreational purposes and visitors to their property. Such provisions are included in our Bill. It is a reasonable request.
Fox hunting and beagle hunting also take place on land. There is a great tradition of fox hunting in this country. It is fundamentally important to the Irish horse industry. Last weekend I spoke with the chairperson of the local fox hunting organisation. He said that approximately 50 per cent of all lands are prohibited to the hunt due to the public liability situation and that percentage is increasing each year. He said that if it continued for the next four or five years, only about 20 per cent of land would be accessible to the hunt. This will, he believes, finish fox hunting in the area.
It could lead to mongrel foxes.
These matters cannot be ignored by the Government.
Farmers are not the only people who are unhappy with the present law on occupier's liability. A number of Departments are concerned. The Department of Energy is concerned with the claims made against the State in respect of injuries suffered by people in State forests. Restrictions have been placed on public access to certain State lands, which include forest parks and amenity areas, as a result of the present law. The Department of Agriculture, Food and Forestry has expressed concern about the possible adverse implications for the growth of agri-tourism and what is perceived to be a high duty of care on the occupier.
The Department of Education has expressed concern about the impact of the law on outdoor sporting activities. Sporting organisations are concerned about the effect dissatisfaction with the present law will have on the activities of their members. Gun clubs have been particularly perturbed by farmers' threats to cut off access to their lands. They have supported calls from the farming community for an easing of the duty of care on farmers in respect of trespassers.
The Government cannot continue to say that the question is being examined by the Law Reform Commission. How long must we wait for this legislation? How much damage must be done in the intervening period? The Minister said the matter is being actively considered. However, on Wednesday, 4 November 1992, the Seanad was given the same reply by the previous Minister. This is unacceptable. I appeal to the Minister to accept this Bill on Second Stage. We are prepared to be reasonable. I would accept a waiting period of two months — I am not speaking on behalf of Senator Neville — to give the Minister time to formulate his Bill. Amendments can be proposed which, if they are reasonable, will be accepted. Do not let this matter drag on as it has for the last five years. The Minister would have to go to the country to understand the degree of public concern.
A number of foxes have been saved.
I appeal to the Minister to accept the Bill on Second Stage. We are aware of the legislative programme in the Dáil and that it is impossible to include a Bill of this nature in the programme. This Bill, if accepted, can be amended on Committee Stage.
I welcome the Minister. I appreciate Senator Neville's concern about this matter. People who have monuments on their land have brought to my notice their concern about people who visit such monuments and the problems that may arise subsequently.
Everybody remembers that, as children, they used shortcuts across their neighbours' lands. Thanks to the motor car the use of such shortcuts is not as prevalent now. Everybody remembers going for walks in the countryside; some people may have gone hunting. Many of our national games would have been lost but for the goodwill of land owners who allowed young fellows to play on their land. In those days there was little heard about litigation or compensation. Goodwill prevailed between owners of land and visitors to the land. We do not want to lose that great facility of goodwill and we appreciate that legislation on this matter is necessary.
If legislation is not introduced soon sports, such as fishing, fowling, hunting, open coursing, drag hunts, orienteering and even visits to the seaside, could be severely curtailed. Biology or geography teachers often take children onto farms or mountains for educational visits. Such activities and school outings will be stopped if adequate legislation is not introduced.
Historic sites are the cause of greatest concern. Farmers see people arriving on their land and possibly climbing old ruins and there is a serious danger that the wall might crumble beneath the visitor. Many farmers are seriously considering fencing off such structures. That will be a severe loss. Visits to holy wells, old castles, historic sites and so forth may be finished for good. There is also a danger that a person, mindful of the danger, might decide to bulldoze the historic structure so that people will no longer visit it. There are always dangers for the visitor or tourist on the land and we need legislation to deal with that.
Whether injuries are serious or slight, the greatest curse is claims for compensation. Many claims have been made; there is a question whether some claims were justified. As the Minister said, there is a big difference between a child going onto a property to retrieve a ball and a burglar who trespasses with the intention of stealing. We need comprehensive legislation to deal with that. This matter will be dealt with under the Programme for Competitiveness and Work. The farming community and property owners are concerned that something be done. The Minister has promised that comprehensive legislation will be introduced this year. The Law Reform Commission is examining the situation.
We need such legislation to deal with the many situations that arise involving, for example, the visitor to the land, the person who implies that they have a right to visit because there is a historic site on the land, people who use a shortcut across a field to reach a site, visitors travelling through different fields to reach a site etc. It is important to note that if legislation which closes the loopholes is introduced it will be the answer to an important problem.
I appreciate Senator Neville's concern. He knows what people want and I believe the Minister will introduce comprehensive legislation in this area.
The Progressive Democrats support this Bill unreservedly. On 1 December 1993 my party moved a motion in this House. It stated among other things that—
Seanad Éireann calls on the Government to... bring forward effective legislative proposals... to provide for more realistic duties of care for landowners, employers and owners of premises in respect of liability to the public and employees;
That motion was accepted by the Government. I was very encouraged by the reply given by the Minister of State at the Department of Enterprise and Employment, Deputy Seamus Brennan. However, time has moved on and nothing has happened. The Minister for Equality and Law Reform is now with us, so one wonders who has responsibility for this matter.
Given the appreciation shown for Senator Neville and his Bill, I am disappointed the Government did not come in with a concrete alternative proposal. Even accepting that more comprehensive legislation is needed in this area, this Bill would be a good start because this matter is of serious concern to landowners all over the nation. It would be good to begin with what we have before us. This matter has been debated repeatedly in this House over an extended period and we have had indications at all times that it is being sympathetically considered. Yet still nothing happens.
The Minister mentioned in his speech that the Programme for Competitiveness and Work deals with this issue and that it is intended to bring forward legislation this year to reform and update the law in this area. I accept that assurance, but such legislation is totally overdue. There can be no degree of pride in telling the House of this intention. We have gone past the stage when something should have been done.
Unfortunately, given the numerical strength of the Progressive Democrats in Seanad Éireann, it was not possible for my party to bring forward a Bill so we dealt with this matter by way of motion. Concern has frequently been expressed by different parties on this side of the House on this issue, and those attitudes have been supported by those on the other side of the House this evening.
I am a landowner, although I am not sure that I can be called a farmer. My land borders on the River Liffey. I want people to enjoy the land of Ireland and to fish on the water running beside my land. Regrettably, I increasingly find myself in a position where I may be forced to deny people access to something I believe to be a right — the right to access to the countryside.
If the Government is serious in all the rhetoric spouted about promoting tourism, it is only reasonable to expect those who come to visit our country should be able to enjoy the countryside and have access to it. Effectively we are denying them access because I have to seriously consider putting up a notice saying "Keep out". I do not want to do that, but it is what I am being forced to do. Senator McGowan raised the question of leasing land. I lease land from other landowners and I have to take out public liability insurance on that land. I am prepared to do that.
This issue has become a nonsensical quagmire. The North Kildare Trout and Salmon Anglers Association has access to the waters of the Liffey. That association takes out its own public liability insurance, and as a trustee of that association, I ask at each annual general meeting whether the insurance is in order, because I am the person liable under law in the event that it is not. Association members who fish the waters are covered by the association's public liability insurance and by my public liability insurance as a landowner. However, the poacher who comes across the land is not covered by insurance and I am supposed to pay that bill. This is ludicrous and no one could defend that.
There are no poachers on the Liffey.
Senator Daly knows the current position in Clare is that landowners are denying people access across their land to reach monuments. How does this fit in with the rhetoric about developing our tourism resources? It does not add up. If someone wants to organise a rural show, the first matter they must address is the bill for public liability insurance. When a community comes together to raise money for itself, it is prevented from doing so by the law.
The Minister has given us a legal treatise, and I am sorry I am not a law student because the current legal position has been clearly explained. That is not at issue because the law needs to be changed. The Minister said the law in this area is governed by decades of common law tradition, but it is clear this tradition is no longer serving us as well as it might. In truth it is not serving us at all. That is why the Bill before the House in Senator Neville's name should be supported.
One clause in the Bill covers State property. The public liability insurance premium for Kildare County Council is £525,000 per year. In addition to that the council must find a further £100,000 to pay the first £5,000 of claims. There is something seriously wrong when one county must pay a charge of £625,000 and this is the reason for the urgency in the pleas to the Government to bring forward the legislation.
Once again we hear about the Law Reform Commission report. We suffer from having too many reports — the Culliton report, the Moriarty report, etc. When we ask the Government to do something the standard response is to produce another report. It takes a year to produce the report and it may take another year for the Government to act on it, if it does so at all. By that stage the Government has changed and the process starts again. This is a recipe for doing nothing, a sclerosis of the system. We will gradually grind to a halt if we cannot address and deal with these problems effectively.
Previous speakers mentioned the question of putting up warning signs. I have a slurry lagoon on my land and I have put up warning signs advising people of this danger. Those signs have been vandalised. In the event of an accident I do not know whether I can be said to have taken reasonable care. These are serious questions for landowners and they are concerned about these issues.
The onus should be on the person entering the land, including those invited on to the land. By all means there should be a duty of reasonable care on the landowner, but there should also be an onus on the person going onto the land. At present the onus is in the wrong direction, not least because it is affecting employment, tourism and the economic life of the country as well as affecting individuals.
The Minister says he accepts the broad import of the Bill and I take that statement in good faith. In those circumstances, and if the Government cannot accept this legislation, it is under a serious obligation to bring an alternative Bill to the House. I do not see evidence of that this evening and I see only limited evidence of a will to address that problem in the immediate future.
The question of playgrounds has been dealt with by Senator D'Arcy, and what he said is correct. What is the point of people banding together or of local authorities providing facilities if those facilities are closed down for insurance purposes? Those who are injured should be compensated, particularly when children are involved who may not know the implications of entering property. Something is seriously amiss and the problem must be tackled quickly.
Ba mhaith liom fáilte a chuir roimh an Aire go dtí an Teach agus comhghairdeas a dhéanamh leis an Seanadóir Neville maidir leis an mBille. This is a timely issue we are discussing because it is a big problem for the farming community. I am delighted the Minister has been so positive and has said he will introduce a Bill this year. I am also pleased that he has not brought in a Bill too hastily. Some might ask why we cannot deal with this issue quickly, but this is a complex problem.
Mountain climbing and orienteering have been pastimes for adults and school groups for many years. Mountains were previously regarded as commonage and people walked across paths and fields. Our show committee in Grange is celebrating its 50th anniversary this year but we are finding it difficult to get insurance. For the first 30 years we never had insurance and no one looked for it. Children often went home from school across the fields, but no one looked for compensation if someone tripped across a fence and cut their leg. There is an article in The Irish Times today about a person who took an action against the local authority because he fell on the footpath while playing football. He got £7,500, although he admitted in court that his injuries had healed and he was in perfect health. I am sure it was only a scratch like we all got on our knees when we were young.
When these claims have been completed, how much does the injured person get and how much is given to the legal profession? The Minister could answer that question, but he probably will not.
These people must also bring in valuers, who are also well paid.
Unfortunately, the valuation business does not get the same amount of work as the legal business does.
We are living in an era where people want to claim for everything. Sheep owners who own land on a mountainside can be prosecuted as a group. This is a complex area, therefore legislation must be introduced to cater for such open territory, which everybody feels they are entitled to use. People can claim against a group of individuals.
Over the years problems have arisen about monuments on land in County Sligo because the Office of Public Works would not erect stiles and make pathways to them, as I suggested at a county council meeting. This could then be used as the official entrance to the monument and anyone injured outside this area would not be able to claim compensation because they should not be there. This should be incorporated in the law.
There are many angles to this problem. Trespassers who go into a field where there is a bull or a cross cow could get injured. If a dog runs under a gate into a field and a child runs after it, he could fall and risk injury. I agree with the Minister for highlighting the report from the Law Reform Commission because this situation must be teased out carefully and we must ensure that farmers in all circumstances are protected. A business premises is a confined area which people may go into as often as they like, but a farm could stretch for miles along a road.
I ask the Minister to build paths to monuments because no visitor should have the right to wander over a man's land. Farmers could have sprayed the land with weed killer and it could be poisonous. If someone chewed a blade of grass, which people did long ago, one could be poisoned. One cannot pick up a golf ball now and lick it clean, as was done in the past, because herbicides are used on the land and one could become seriously ill. These angles must be considered. Long ago there were specific paths and stiles to monuments so that people did not go through a farmer's land. However, at present there are no designated paths to these monuments. We cannot afford to refuse access to them because they are a tourist attraction.
Insurance companies are to blame for some of these problems because they will settle a claim for less than £10,000 and they will not go through the courts. This encourages people to settle for £7,000 or £8,000. As a result, a person's insurance is increased. The insurance company does not ask the person for his opinion, but he is paying the Bill. There is a saying that the man who pays the piper calls the tune. However, this is not true of the insurance company, which calls the tune and the person pays the bill. The Minister is correct to carefully examine this.
Senator Neville is correct to bring this Bill before the House because it is a serious problem in rural Ireland today. Because farmers are worried that people will get injured on their land, they have erected notices which state that no trespassers are allowed. However, I am told these signs do not give them any protection, but at least they warn people that they are entering land at their own risk. However, a farmer would need a notice at every gap on the land because one is not sufficient. One notice is sufficient if there is poison on the land because it is someone's bad luck if they get poisoned. The law is clear in this regard, provided one has erected a notice stating that the land is poisoned. However, I am not sure if a notice which states that people are entering at their own risk is sufficient in the eyes of the law.
Shooting has been a great pastime in the country over the years. Gun clubs are now taking out insurance and they are organising their activities in conjunction with the farmers. However, if someone who is not a member of the gun club poaches on the land and gets injured, the farmer is blamed because the gun club insurance will not cover him. The same applies to fishing, as Senator Dardis said.
There are many serious situations which must be considered, because any Bill we introduce must be watertight and it must ensure that the farmer is protected. Farmers were always willing to allow people through their land and they never refused access to it. However, fear is now preventing them from continuing to do so. I am glad the Minister will introduce a Bill before the end of the year which will safeguard the farming community in this country. I thank the Minister for the interest he has shown in this issue. As an eminent lawyer, I am sure he and his draftsman will look at this worthwhile legislation.
I would like to share my time with Senator Cotter.
Is that agreed? Agreed.
I will give Senator Cotter five minutes of my time.
I support this Bill because this matter is important to everyone. I congratulate Senator Neville for introducing this Bill again and giving Members an opportunity to vote on the important matter of occupiers' liability. Fine Gael feel strongly about this issue. This matter was raised in the other House by Deputy Deenihan. He pressed this matter and a full discussion took place, but unfortunately the Government voted against it. I gather it intends to vote against Senator Neville's Bill this evening. Perhaps the Government is unhappy with some of the proposals contained in Senator Neville's Bill. However, he is someone who is most accommodating and I ask the Government not to vote against the Bill, but to allow it to reach Committee Stage. Fine Gael — and I am sure we have the support of other parties — will try to bring this Bill to Committee Stage. It is important for everyone.
In Ireland there has always been a proud history of allowing people enter onto lands to shoot, hunt, fish, swim or walk for exercise. The farming community has always been generous in this regard. In the past people did not damage lands. This issue first arose 12 to 14 years ago when someone broke their leg walking in County Wicklow. A case was taken to the High Court and £14,000 was awarded. From that point on there has been a huge amount of litigation on this issue. I was amazed by that decision. However, if one had the opportunity to listen to all the facts one might arrive at a different decision and I am sure the correct one was reached in that particular case.
At present the law is unsatisfactory and it must be changed. I appeal to the Minister to concede that the Bill Senator Neville presented is one which is worthy of approval by the House and that we proceed with it to Committee Stage. Farming organisations are concerned about the unsatisfactory state of the law. It brings the law into disrepute if a trespasser who enters lands and is injured can claim against the farmer who may be at home in bed or at home with his family. This injury may be received through no fault, or through little fault of the farmer, because the injured party must prove negligence. The farmer is faced with defending the action even if there is no decree against him. Although the individual taking the case may have no means, the farmer must defend himself and he may incur a lot of expense. That unsatisfactory situation must be looked at.
I come from the constituency of Laoighis-Offaly and tourism is important in this area. Clonmacnoise, the Slieve Bloom Mountains and the River Shannon are located there and farmers are developing their farms as open ones. Many people grant holiday makers, including a lot of foreigners, permission to enter onto lands. However, the situation is so unsatisfactory that farmers are beginning to prevent people from entering onto their lands.
I congratulate Senator Neville for introducing this Bill. Given that the Government will not introduce its legislation before the end of this session, another summer will pass with farmers being left in a state of limbo. I appeal to the Government to accept this Bill. We do not want to sound triumphant; we want commonsense and sanity brought back to an area which is at present a minefield.
It is essential that the people are able to freely enjoy the environment, something which we all aspire to, and that we are able to develop our tourism industry. This is not possible and that is why this legislation is before the House. I congratulate Senator Neville, Senator D'Arcy and Deputy Deenihan, in particular, for initiating this in the other House. This has been a matter of great aggravation and public discussion for a long time. This Bill should not be before the House because the Government has had plenty of time to bring forward its legislation since Deputy Deenihan brought it to the attention of the other House. Given that the Government has not done so, we ask that it use this legislation as a basis to produce what it would deem to be the finished product. This should be done immediately, because the Government has not yet reacted to this urgent matter.
We all agree that we must take responsibility for guests — people we invite into our houses or onto our property or lands. However, it is untenable that it could cost a person a large sum of money if someone goes onto their land without their knowledge. There are two sides to this: first, the proprietor should not be faced with that type of problem and, second, there should be some degree of protection for an injured individual if the law decides that protection is necessary.
This issue is a minefield and it is preventing the development of the tourism Industry. There are many lakes in County Monaghan which provide good fishing grounds but to gain access to them one has to cross someone's property. Until now the situation was relaxed and people allowed strangers access, although they were worried. People are always talking about preventing access and in some cases this has happened.
I know of a hotel whose public liability insurance is offered on a month by month basis. That is only one hotel, but I have heard rumours about others. As far as the insurance company is concerned, the hotel should get its act together or close. How can a hotel cope with the strain which exists because of the epidemic of claims in certain areas? The situation is detrimental because the cost of public liability insurance is enormous and it limits development. This illustrates the type of difficulties faced by those who own property and who must cover huge claims made by people on their property without their knowledge. I ask the Minister and the Government to accept this Bill and to amend it if necessary. It is essential that this matter is dealt with now so that we are fair to every citizen.
I have a certain sympathy both with the Minister and with Senator Neville in trying to put down a legal framework that will in some way deal with the situation in which we find ourselves. I do not wish to unduly delay the House as a lot of what I would say is repeating what has been said here already. This matter must be dealt with urgently. The situation is serious and positive legal action must be taken to deal with the problems that are arising in what has been described here as a complex situation.
Some time ago, when the decision was made to refer the matter to the Law Reform Commission, it was anticipated that the Law Reform Commission would deal expeditiously with this and would come up with a report very quickly. This did not happen. It was several years before the recent report of the Law Reform Commission was made available. I would like to share the Minister's optimism that we will have a final report from the Law Reform Commission within the next few weeks and that in a very short time after that, the Minister, with his own professional advisers, will produce a Bill to be brought before the House here. I would very much like to think that will be the case and I support him in taking whatever action is necessary to ensure that happens, but we have waited a long time to get the initial report from the Law Reform Commission. I read that report in so far as I could. It was a complex report which raised many very relevant but nonetheless complex issues.
I do not agree with the view that has been expressed here by some speakers that we should take Senator Neville's Bill, good as it may be, and because of the absence of some other framework use it as a first step. It is important, since we have already waited so long, that we await the final report of the Law Reform Commission and the considered views of the Minister. I strongly suggest that the set up a select committee of the House to examine the report and put a final formula in place. I recommend the greatest urgency in dealing with the situation because it is one that people are getting very impatient about and quite a lot of damage may be done in many areas unless it is speedily dealt with.
This time last year I attended a meeting of the Clare Tourism Council which expressed very grave reservations about the situation. They pointed out that many of the important historical and tourism sites in the county have been fenced off because of the absence of legislation in this area. Access to important sites like Leamaugh Castle and the Poulnabrone dolmen was not provided last year because it was unclear what the liability position was. Many more areas will be fenced off this coming season.
I attended a very important meeting of the Clare branch of the Irish Farmers Association a few nights ago, when the President of the IFA spoke out very strongly about this situation and demanded some Government action to deal with it. I say these things to underline the gravity of the situation that we are faced with and the necessity of dealing with it urgently. I urge the Law Reform Commission to speed up the final report. Let us have a clear indication from the Law Reform Commission in the next few weeks as to how they suggest this should be dealt with. The matter is one for the Minister after that.
In the event of this report not being available in the next few weeks I strongly suggest that the Minister set up his own advisory team of professional people to advise him in this area, because I would not go through the embarrassment again — we have had it before on a number of occasions — of having to come in and on the basis that Government legislation will be forthcoming, vote down genuine legislation put forward here because people in the Opposition feel the necessity to deal urgently with matters of this nature. Further delays in this area are just not acceptable. I strongly suggest that in the event of the Law Reform Commission not bringing forward their report within the next few weeks, as the Minister has indicated here tonight, he take some professional advice that will bring forward a solution in a few weeks or months so that we can see a framework of legislation before the end of this year. These promises have been made and the people are expecting some action on them.
I am quite sympathetic with the Minister's position. I understand that it is a complex area. The law here is not clear, but when the law is not clear in matters of this nature it brings the law into disrepute, or at least brings an increase in litigation and claims. The enormous number of claims which have arisen in this area over the last few years has indicated very clearly that there are very grave doubts about what the law is. People will endeavour to get the benefit of the doubt in legal situations like this.
I cannot understand why it has not been possible to use the model the Minister mentioned here tonight, that is the legislation which was used in the United Kingdom almost 40 years ago. Occupiers' liability legislation was introduced in the United Kingdom in 1957. The same kind of legislation operates in the northern counties. The situation in the United Kingdom has been largely regulated because of that and further legislation which was introduced in 1984. That model, plus a number of others, could be examined and could provide a satisfactory solution to this problem. A totally satisfactory solution to this problem will never be found but a solution could be found that will make it quite clear what people's liabilities and responsibilities are.
While I fully believe that owners have liabilities and responsibilities, some latitude must be allowed and the State must have some involvement as well, especially in areas where public monuments and people's property are involved and where public rights to beaches and other places are concerned. Quite near to my home access to one of the most important beaches in west Clare has been fenced off for a number of years because of a claim which was brought arising from injuries to people in the sandhills. These are legitimate claims, and if I were in a similar situation I would do the same. But the Government has a responsibility to deal clearly and effectively with this, and to do so urgently and quickly. We do not want to find ourselves back here in a year's time, with legislation again before the House, still relying on the fact that the Law Reform Commission are the professional advisers and that the Departments do not have to come up with a formula to deal with this. It has gone beyond that stage now. I want to impress upon the Minister my full support for the position he is adopting. I am not satisfied with the Law Reform Commission because we are waiting years for this report.
It is not the best procedure to adopt a measure simply because it is on the table. The Government must table a well thought out and researched Bill. It will probably be necessary for the Opposition to amend that Bill when the time comes. I am prepared to go along with the Minister's comments here tonight. I have every sympathy with him in the difficult task he has ahead of him. He can be sure of our support, but I would like to see the Bill introduced speedily and urgently.
I must put on the record that, as a spokesperson for Democratic Left, I support the Bill. The most urgent need, if this Bill is to be voted down, is for the Minister to bring in alternative legislation. For some time past the issue has become very contentious. There is a lot of tension and ill will developing. We do not want tension between the urban and rural communities.
The Minister made a statement to the effect that the Programme for Competitiveness and Work makes it plain that the Government will bring forward legislation during the year to reform and update the law in this area, taking into account the Law Reform Commission report. I ask that a specific commitment be given in that regard, that the Bill will be introduced in the next session, and that it will be introduced if Senator Neville's Bill is to be voted down this evening.
The Minister also referred to the situation in England where it is open to non-business occupiers or business occupiers to allow visitors to enter free of charge an historic site, for example, to exempt themselves from liability. One can rest assured that in this country we will never succeed in getting the voluntary assumption of risk because that is the attitude we have adopted.
The gun clubs are well organised and disciplined and they have their own insurance cover which is adequate. However, they have expressed concern on this matter. In my area of north Cork there are many national monuments. Among them is Spencer's Castle and it was only recently pointed out to me that we might not have access to it. The landowners in that area are reasonable people but that could change. The most concern is being shown by landowners who have land adjacent to residential developments where there is the likelihood of young people going onto the land and, naturally, young people might show less care than older people.
In discussing this contentious matter with some landowners in my area I have tried to argue that the onus is on the trespasser to prove negligence but they would not listen to that. If we were to debate the Bill on Committee Stage section 3 (1) would be the subject of a lot of debate. It includes the condition that an occupier must "only give warning of the existence of any concealed danger which exists on the land and which is actually known to the occupier" which would be contentious.
I am glad to have the opportunity to speak on this Bill and I, appeal for legislation to be introduced expeditiously if this Bill is to be voted down.
I thank the Minister for his reply although I do not agree with it. I thank the Senators for their kind remarks and, especially, Senator Quinn, Senator Dardis and Senator Sherlock who supported me although they are not members of my party.
The issue of liability is complex and this is why we chose the landowners' aspect of it. This is important because this aspect concerns more people than any other. We accept that the matter is complex and we believe our Bill can form part of more complex legislation. However, it is necessary to introduce our Bill immediately to cover the most important aspect of the matter. There is an immediate problem and, as Senator Enright said, another summer will pass without anything being done. Many people will be concerned; many tourists will be prevented from seeing our national monuments; many people will be refused permission to go onto land to view the scenery or to walk to lakes to fish.
Parts of the Minister's speech were supportive of the contents of the Bill and I thought he might accept it but, unfortunately, he did not. His reservations relate to certain aspects which could be fully catered for on Committee Stage. One of those was that "occupier" was not defined in the Bill, although this could be done by means of a simple amendment. On Committee Stage of the Criminal Justice (No. 3) Bill, 1993, earlier today we had 36 amendments. Of those, 26 were Government amendments. If that many amendments can be proposed in the Seanad to a Bill which had already gone through the Dáil, it should be acceptable to amend this Bill to deal with any reservations the Minister might have and improve the Bill. If the Government accept the Bill I will fully accept that it can be improved.
The Minister and others spoke about the commitment to introduce a Bill to cover this issue by the end of the year. On 4 November 1992 this issue was debated in the House and a reply was given by the then Minister of State at the Department of Justice, Deputy O'Dea. I quote from the Official Report, 4 November 1992, Vol. 134, col. 1001 where he said:
Finally, I should state that the Government are committed to acting on the commission's recommendations within the timescale of the Programme for Economic and Social Progress.
I would remind Senator Calnan who spoke about having this introduced under the Programme for Competitiveness and Work that this legislation was promised in the previous Government's Programme for Economic and Social Progress. The then Minister of State continued:
Accordingly, I can commend the amendment to the motion before the House in unequivocal terms on the basis that the situation is currently under... review and there is a commitment to bring forward the necessary legislative proposals before the end of next year that is, before the end of 1993].
Nothing happened. We asked in the course of various debates when the legislation was likely to be introduced and we got not positive reply. It was promised at the end of 1992 and we are now almost half way into 1994.
We have had promises about other legislation at other times in the House. On 10 November 1993 we introduced the Refugee Protection (No. 2) Bill, 1993, and the Minister of State at the Department of Justice, Deputy O'Dea, said at col. 321, Vol. 138 of the Official Report of 10 November 1993:
The Minister agrees with the principle behind the Bill and with many of the measures proposed. As I made it clear, however, the Minister agrees that our procedures for dealing with refugees and asylum seekers should be given statutory effect ... The Minister does not necessarily agree, however, with all the provisions of the Bill now before the House and she also feels that it is not comprehensive.
He then committed himself to introducing a Bill by Christmas.
Another example which I raise often is the Bill to decriminalise suicide which I introduced in December 1991. The then Minister for Justice promised us that if we withdrew the Bill he would introduce a similar Bill by Christmas of 1991. The Bill was, finally introduced in mid-1993 after two further Bills were proposed from this side of the House, one of which was withdrawn only because the Minister announced a Bill on the same day. The two previous Bills were, however, voted down. It took a year and a half to satisfy a three weeks' promise. I hope the Minister does not mind my saying that I am sceptical about commitments made by Ministers. They may have been made in good faith at the time, but in my experience of introducing legislation during Private Members' Time, we get promises but little action afterwards.
Senator D'Arcy raised the issue of Parks and national monuments. All of us in local government are only too aware of the difficulties that arise with regard to parks we supervise and own and of the various claims made against us. It is putting an extra burden on local authorities because of high insurance costs and is taking money from areas we need to service. I need not remind the Minister of State again — she will be the one allocating the Structural Funds — that we need money for our county roads.
Sporting organisations have made many statements on this issue and have urged reform in this area. Some have said that we may be running counter to some of the views of these organisations. That is not the case. These organisations want and require this legislation because their traditional access to land is being removed in many areas. Senator D'Arcy mentioned that 50 per cent of landowners in County Wexford have stopped some sporting organisations from entering their land. It is predicted that within a short period of time that figure will increase to 80 per cent. That highlights, as Senator Daly said, the urgency and the seriousness of the situation. We fully agree with that and we suggest the Government accepts this Bill as a first step, as Senator Enright said, a towards making progress in this area.
Our main concern is the occupation of land. The other area is complex and can be legislated for, as the Minister said, by the end of the year. The matter of land is causing extreme concern to landowners, sporting organisations and the agri-tourist and activity tourist businesses. Recently I brought some tourists to a castle near my home and after reaching it, the landowner told us to leave. He did not realise that his neighbour was among our party. He was extremely embarrassed when he became aware of this and immediately apologised to us. However, he was right to ask us to leave. Indeed, because of our previous debate on this matter, I told him that I fully understood his position. The castle we visited was a 13th century castle, which would be of great interest to many tourists.
It is a pity that farmers and landowners are forced to stop people from visiting such places because of concern for their own position. I fully understand their actions. If a farmer were to ask me for advice about whether he should stop people from going over his land to see such monuments, to go fishing, shooting or to do any other activity sports, I would have to cover both myself and him by telling him not to permit it. That situation must change, and change quickly. If it is not changed now, the practice of not allowing people onto land will develop.
There is a wide acceptance at the moment that people can go on to land. Farmers welcome people to go shooting, hunting, fishing, walking and mountain climbing on their land. However, if this practice of not allowing people onto the land develops further, it will not be reversed, no matter what type of legislation or cover one introduces.
I wish to share the rest of my time with Senator Taylor-Quinn.
An Leas-Chathaoirleach
Unfortunately, you have used up all your allotted time, Senator.
Question put.
The Seanad divided: Tá, 16; Níl, 21.
Tá
- Belton, Louis J.
- Burke, Paddy.
- Cosgrave, Liam.
- Cotter, Bill.
- Cregan, Denis (Dino).
- D'Arcy, Michael.
- Dardis, John.
- Doyle, Joe.
- Enright, Thomas W.
- Farrelly, John V.
- Howard, Michael.
- McDonagh, Jarlath.
- Manning, Maurice.
- Neville, Daniel.
- Sherlock, Joe.
- Taylor-Quinn, Madeleine.
Níl
- Bohan, Eddie.
- Byrne, Seán.
- Calnan, Michael.
- Cashin, Bill.
- Cassidy, Donie.
- Daly, Brendan.
- Fahey, Frank.
- Farrell, Willie.
- Finneran, Michael.
- Fitzgerald, Tom.
- Henry, Mary.
- Lanigan, Mick.
- Lydon, Don.
- McGennis, Marian.
- McGowan, Paddy.
- Mooney, Paschal.
- Mullooly, Brian.
- O'Sullivan, Jan.
- Ormonde, Ann.
- Roche, Dick.
- Wright, G. V.
Tellers: Tá, Senators Cosgrave and Burke; Níl, Senators Mullooly and Calnan.
Question declared lost.
An Leas-Chathaoirleach
When is it proposed to sit again?
It is proposed to sit again at 10.30 a.m. on Thursday, 5 May 1994.