Deputy Browne (Carlow-Kilkenny) was in possession, and he has ten minutes.
Private Members' Business. - Protection of Occupiers of Land Bill, 1993: Second Stage (Resumed).
Question again proposed: "That the Bill be now read a Second Time."
I have not changed identity. I am sharing the remainder of Deputy Browne's time.
This Bill introduced by Deputy Deenihan in the House last night sets out to deal with one problem and one problem only, or I should perhaps say more accurately, only one aspect of this problem. We are concerned with the position, the rights, and at the moment the obligations and penalties being imposed on landowners. There are other aspects of this problem which have been adverted to during the course of this debate, which we do not set out to resolve because we are not in a position to do that at the moment. We are in a position to make the proposals set out in this Bill to resolve the very clear and well defined problem that exists for landowners in regard to their obligations to people entering their lands. That is the reason the Bill was introduced by Deputy Deenihan. That is the reason for the action we have taken.
We are concerned with the obligations that have been put on landowners who in all the cases covered by this Bill are innocent parties who may find that they are put in a position where they have to pay, where they have to insure, where a burden is being imposed upon them. Looking at that and looking on the other hand at all the other considerations which Deputy Deenihan developed last night and to which, indeed, the Minister, Deputy Taylor, referred last night in relation to the development of tourism and tourism related activities, this measure is needed so that we can have the development that people wish to see, but so that we can ensure that that development does not take place in a real sense on the backs of innocent landowners. That is the only aspect of the problem with which this Bill sets out to deal. Criticism of this Bill on the grounds that it is not comprehensive or that it does not cover these other aspects is totally unfounded. There is a problem here which we can grasp, which we can delineate and which we can resolve in the way that is set out in this Bill.
I want to respond to the Minister's comment last night on the Bill. I am very disappointed by what I have heard from the Minister. Almost his very first words were to say that the Government is committed to the reform of the law relating to the liability of occupiers, for injury resulting to persons on land or other property. For the rest of his speech he set out to tell us why the Government intends to do nothing about it now, why the Government intends to ignore the problem, to wait for somebody else to come along with a report. That is a totally unacceptable approach.
I am worried also by the way the Minister illustrates his approach. Speaking on a change in the law last night, the Minister said that the issue is what form the change should take so that the right balance can be struck between the interests of the occupiers of land and those of other persons who enter the land. That worries me. I do not want to see some change in balance, if we are talking about a matter of degree. What we want, as set out in this Bill very clearly, is that the occupier of land has no liability to persons entering upon his land without authorisation from the occupier. Unless and until that position is clearly established, occupiers will feel at risk and as long as they feel at risk we will not be in a position to feel that people like myself or any other Member of this House can enter on lands even for innocent purposes without there being a danger to the occupier. That is what we set out to redress. We are not talking about modifying a balance. We are talking about establishing very clearly circumstances in which there will not be a risk to the occupier of land. It is as well to put a tooth in it from the very beginning because any other approach is simply a variation on a theme that we find discordant and that owners of land find is not in their interests.
There are other things that worry me about what the Minister has said. He talked about court decisions that have been referred to. It seems rather disingenuous of the Minister to have spoken as though no public debate on this issue had taken place. This issue has been a matter of debate, worry and some contention for a good many years. It is not as though we are coming to the issue fresh or without a very clear idea of the problems. For the Minister to pretend that there is need for further discussion is disingenuous. We can have a debate on the finer details of the Bill and what he might like to do to change it on Committee Stage. Speaking of previous court decisions, the Minister said:
The bulk of those decisions have dealt with the position of trespasser and, for the present at least, may suggest that trespassers could be entitled to a higher duty of care than other more lawful entrants onto land.
That is an accurate statement of the present position and shows the kernel of the worry. For the law to contemplate circumstances in which there is a higher duty of care to a trespasser than to other, more lawful entrants onto land must surely be a legal nonsense. To have a position where a land owner has to exert greater care and take more stringent measures to protect unlawful rather than lawful entrants onto his land is a legal nonsense, one that must be reversed and set aright at the earliest possible opportunity. That is what we will do.
The Minister referred to the case of two gun club members on an occupier's land, one insured the other not insured and the case that arose between them. It is irrelevant to quote that untypical case. It is one of the many kinds of cases that would be dealt with satisfactorily by the provisions of the Bill. For the Minister to cite that case as a reason for not taking action is nonsensical.
The Minister suggested that there is a choice of models in dealing with this problem. He mentioned the model which exists in England. Deputy Deenihan dealt with that issue at some length and in some detail. It is idle for the Minister to say that is something we should consider. It is being considered and it is the proper function of this debate to come to a conclusion on it. The Minister mentioned the Occupier's Liability Act of 1984 in the United Kingdom. Deputy Deenihan dealt with the issue too.
The later parts of the Minister's speech seem to be highly questionable as a contribution to this debate. The Minister was talking about looking at the position of various groups. He criticises this Bill on the grounds that it is not comprehensive, that there are other issues to be dealt with. He asks questions about whether the provisions of this Bill would sit happily with common law. He says the scope of the Bill is confined to land but does not deal with other issues. I find, in all those reflections on the Minister's part, the classic arguments for delay. The Minister is using the old tactic of setting up an Aunt Sally, knocking it down and saying he has disposed of the argument. He has not.
We have made it very clear that the focus of this Bill is very specific. We want to deal with the problem being experienced by owners and occupiers of land because that is where the problem arises, causing difficulties in the development of a great many tourism activities nationwide. I will give one example. Like every other Member, I received today the annual report and accounts of Coillte Teoranta. There is not one reference in that interesting document to the role of State forests in the recreation industry. There is a problem there. I know operators in the tourism industry who cannot gain access to State forests, or forests owned by Coillte Teoranta because they are worried about the liability they would incur in the event of people having an accident. More and more of the sports and activities we are trying to develop to increase the length of the tourism season are outdoor activities on all kinds of lands, including forests. A problem in the development of those activities is the way an unfair law stands at present. As a matter of priority, we should turn our attention to that problem with the specific focus incorporated in this Bill.
I would invite the Government to reflect again on this. We are not pretending to solve all the problems but we want to solve the most urgent one. I invite the Government to allow this Bill to proceed to Committee Stage so that we can do something worthwhile in the interests of our community.
(Donegal South-West): The area of the law known as occupier's liability which this Bill seeks to address is concerned with the duty of care that is owned by occupiers of land, or premises, toward entrants onto the property who suffer personal injury or damage to property during the course of their visits.
It is concerned also with the safety standards which those in control of lands or building should observe to safeguard those who come onto such property. While this Bill appears to be concerned mainly with farmers, the scope of the law on occupier's liability is much wider than that. For example, there is the position of tenants, householders and companies to be considered also.
Coming as I do from a rural constituency, I am very much aware of the difficulties facing the farming community as they try to second guess what their liability might be for any accidents suffered by people while on their property. Nonetheless, I cannot support Deputy Deenihan's Bill at this time. It is my belief that the Bill is premature, and does not address the wider issues which are related to the law of occupier's liability. Furthermore, I have no doubts about this Government's commitment to change in this area. The Programme for a Partnership Government makes it quite clear that the law on occupier's liability will be reviewed and updated in line with commitments given in the Programme for Economic and Social Progress. The House can be assured that this undertaking will be honoured.
We should not lose sight of the fact that the matter under consideration is far more wide-ranging than the text of the Bill before us would suggest. While the farming community may be particularly vulnerable in this area, this is not just a problem for them alone. I am only too well aware that farmers in Donegal are genuinely concerned about this problem. I am well aware too that organisations representing farmers nationally, such as the IFA and the ICMSA, are genuinely concerned. They would like to ensure that farm land continues to be available to the widest possible extent for a variety of sporting and recreational pursuits.
However, quite apart from the legitimate concerns of the farming community, we should bear in mind that the law on occupier's liability is concerned with the care owed by all occupiers of premises, whether land or not, towards visitors. The law in this area is concerned with striking a balance between a wide range of competing interests and it should be seen, in my view, in the context of the reasonable expectations of occupiers and entrants in a variety of domestic, social and commercial settings.
Because there is a recognition by Government of the complexity of this issue, 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. I am firmly of the view that it would be wasting the expertise of the Law Reform Commission and diminishing the value of the commission's work if we were to put legislation on occupier's liability on the Statute Book before the commission's report is available to us. This is why Deputy Deenihan's Bill is both premature and somewhat narrow in its focus. A body such as the Law Reform Commission is best suited, in my opinion, to the exploration and scrutiny of the various intricacies of this subject. The commission has access to a considerable amount of expertise and it also has the capacity to undertake the kind of studies of the relevant law in other countries, something I think is vital if our legislation is to be as effective as it should be.
It is, I understand, only a matter of weeks before a consultation paper is to be published by the Law Reform Commission. The sensible course of action would seem to be to use that report to consult with interested parties and then to proceed without undue delay to the introduction of comprehensive legislation in this matter. I believe many Deputies in the House will agree that it would be both impolitic and premature to legislate on the issue of occupiers liability at this time without being in a position to take the benefit of the advice of the Law Reform Commission into account.
I believe my colleague, the Minister for Equality and Law Reform, is already on record as having said that he would welcome views on this question from all interested parties as it is his intention that the legislation which ultimately is passed in relation to this matter should reflect the concerns of all those who are immediately affected by the present situation.
The present position with regard to persons who enter onto property is that such people have traditionally been classified into three categories — invitees, licencees and trespassers. In general terms, the person is an invitee where his presence on a property is likely to be of benefit to the occupier, for example, a person who enters a shop in order to buy goods. In such cases the duty of the occupier is to use resonable care to prevent damage from unusual dangers of which he is aware.
The licencee, on the other hand, is someone who is permitted to be on other's land but it does not materially benefit the occupier. This could be, for example, a person who makes use of a public park or playground. In such cases the occupier's duty is to warn of concealed dangers of which he or she may be aware. The third category is that of trespasser — a person who goes into a property without an invitation of any sort.
This is probably the category which is of most concern to landowners, in so far as their worries about action for damages are concerned. At least, it is this category which has been mentioned to me most frequently in my discussions on this matter with people in Dongeal SouthWest. One of the problems about trespassing is that there is often an assumption that the trespasser is a person who is on property without permission and who is up to no good. It does not often take into account that in many instances trespassing can be an innocent activity which is wholly devoid of malice — for example, a situation where children stray onto land attracted perhaps by some natural feature such as a tree or water or who merely want to play. As I understand it at the moment, the courts have made it plain in a number of decisions that the occupier of land owes a duty to trespassers whom he can reasonably foresee and that the duty in such a case is to take reasonable care as circumstances demand.
While in recent years there may have been some move away from the traditional categories and a greater emphasis on the general duty of care depending on the particular circumstances, nonetheless the old stratification has not been entirely abandoned. Aside from the fact that the law in this area is in a state of transition, there is an additional complicating factor arising from the fact that there is so little statute law touching on the issue.
We, therefore, have a situation where the law has evolved as a result of various court decisions in the last few decades. Many of these decisions have dealt with the position of trespassers and appeared to suggest that in many ways trespassers may require a higher duty of care than other more lawful entrants onto land. Inevitably this does introduce some uncertainty for landowners, an uncertainty I can well understand. Land owners may fear that they will become the focus of subsantial damage claims.
While I am aware of the worries of many property owners on this point, it is important to remember that not every action for damages which comes before a court will necessarily be successful. We should also remember that in applying the current law to the facts of an individual case the courts will not inevitably come down in favour of the plaintiff. Landowners and property owners should bear in mind that in such circumstances, cases may be as easily lost as won.
While I may have been critical of the quality and the timing of Deputy Deenihan's Bill, there can be very few Deputies who are happy about the current state of the law on occupier's liability. The real issue, however, is how to address this problem effectively. The law currently is governed by decades of common law tradition. It is quite clear that this tradition is no longer serving us as well as it might.
In the area of occupier's liability in particular, it is obvious that a new law on this matter 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. I would agree with Deputy Deenihan, therefore, that there is a need for legislation in this area. However, I do not believe that this Bill addresses this need as effectively as it might and therefore I feel more comprehensive and wide ranging legislation is required if we are to do the job properly.
I note that Deputy Deenihan's Bill recognises that the State has an interest in this matter as a property owner itself. In one sense that interest is very direct and specific in that the State must seek to safeguard its own position in relation to liability for accidents occurring in State forests, in national parks, national monuments or in other amenity areas.
The State must also have an overriding concern to ensure that the valuable amenities of our countryside can be used to the maximum extent possible both for pleasure and for profit. These amenities inevitably have an attraction for visitors. Therefore, it is in the wider interest of our national economy that these attractions should continue to be available to those who seek them out. There is considerable untapped tourism potential in our national heritage, particularly in the area of outdoor leisure pursuits. Regrettably as more people participate in outdoor leisure pursuits there is an increasing risk that they will suffer injury as a consequence. The problem, therefore, is one that is likely to grow more acute as time goes on.
The law in this area is slightly more complex than it would appear from a perusal of Deputy Deenihan's Bill. That Bill largely preserves the traditional distinction between trespassers and licences. It is, if I may say so, a blunt instrument which does not, for example, distinguish between the position of a child who wanders onto property to rescue a ball and a burglar who comes with the intention of stealing. There are a few other small points which could be made about the Bill but the main criticism is probably that because of its brevity it fails to consider fully the ramifications of the occupier-entrant relationship.
The Government is willing to do its part by bringing forward the necessary comprehensive legislation on this matter without undue delay. I appreciate that there has been a growing impatience with the perceived lack of progress on the issue, nevertheless, I would hope that interested groups will await the legislation which the Government has pledged itself to introduce.
The commitment to reform the law on occupiers liability was first given in the context of the Programme for Economic and Social Progress. It was directed specifically towards the farming community. The Programme for a Partnership Government reaffirms the commitment to reform and update the law on this matter. This Bill, has a very narrow focus and, essentially, seems to ensure that the courts adhere strictly to the old common law guidelines on entrants. This runs counter to the trend in a number of common law countries where the emphasis has switched to the general duty of care which an occupier owes to his visitors. This does not prevent proper distinctions being drawn between lawful entrants and trespassers. The court, generally speaking, will not be quick to allow the protection of legislation to be availed of by those who do not deserve its shelter.
While we cannot support this Bill I can promise the House that a Bill will be introduced which I know will allay many of the concerns which I recognise as being legitimate and fully justified. Last night my colleague, the Minister for Equality and Law Reform, Deputy Taylor, gave an undertaking in this House to act as quickly as possible in this matter.
The Government is committed to introducing the necessary legislation on occupiers liability without undue delay. By allowing time for further consideration of all of the issues, not just those which relate to farmers, a good and well balanced Bill can be put forward which will attempt to allay the fears of all concerned to the maximum possible extent.
I trust the House will give the Minister the opportunity to do just that and to ensure that we have legislation which will satisfy all, both inside and outside this House and that will serve us all well for many years to come.
Táa mé ag roinnt mo chuid ama leis an Teachta Liz McManus agus le Fine Gael.
Aontaithe.
Ó thaobh an Chomhaontais Glas beidh mé ag tacú leis an mBille seo um Chosaint Áititheoirí Talún 1993, ach feictear dúinn go bhfuil go leor leasuithe ag teastáil agus is chuige sin atáimid ag tacú leis ag an bpointe seo chun ligean dúinn dul ar aghaidh leis na leasuithe.
This is certainly a timely response to what could be called changes in society in general. The claim mentality is fairly well established in all walks of life. It is particularly rampant in the United States and it has crept in and is now very prevalent here. When I was growing up in the sixties I can recall people falling in school or when on other people's land, and one never considered making a claim involving solicitors or seeking compensation. It seemed to be one of the hazards of growing up; you accepted the knocks and got on with it. It is very different now.
As a primary teacher, when I take people out on trips it is quite likely that somebody will mention, even as a joke, that we could sue or there could be a claim involved. With that in mind this Bill is particularly urgent. It has the support not only of the Green Party but of many people outside this House. It is peculiar sometimes the bed fellows that support legislation. It is a good indication of its merit that it has the support of such a wide range of interests. Those most obviously associated, and in the mind of Deputy Deenihan, would be the farmers and landowners who will be looking very anxiously at this debate. Perhaps claims by trespassers on lands is an indication that farms are getting bigger as farmers with smaller holdings could keep watch on them. That is an argument for another day but it reflects the times we live in.
There are also those who cross land innocently such as hill walkers, ornithologists and even sports clubs. Considering the number of sports injuries that occur they probably feel inclined at times to wonder if they could be compensated. I played a GAA game on Monday and I wrenched my back and while the club is well insured I am not going to press any claim.
There are those whom I would find it difficult to agree with in many cases, who support this Bill, such as the fox, the stag and the mink hunters. Farmers need to be protected from the type of activities which others engaged in. I do not support the fox hunters.
I support the Bill because it seeks to protect the farmers who are subjected to the activities of the hunters that may cause suffering to wildlife. Let us consider some of the uses that land is put to, for example, by coursing clubs. If some of the unfortunate hares could claim for the injuries they incur the land owners would be even more concerned at the prospect of claims. Many people supporting the Bill do not agree on anything else but they are united in their support of this Bill.
There is a general fear among landowners which needs to be addressed and I do not detect the sense of Government urgency I would like to see in their response to this Bill. The fear is that any rights of way or traditional uses to which land was put, quite innocently, many years ago may be the subject of speculation about somebody tripping and bringing a claim. Throughout the country we have a number of rights of way and places where people traditionally felt comfortable and at ease. Landowners share that feeling but now such rights of way are being closed off, there are legal challenges — of which I could name a number — and there is the ultimate prospect of communities being divided over what is perceived as, on the one hand, the landowner being overly cautious and even possessive and, on the other hand, the community's interests which have been in the locality for generations. This matter needs to be addressed because of the implications for the welfare of communities in general, not just landowners.
In my constituency of Dublin North, Portmarnock may not be considered a typical farming area but it has public and private lands. For generations rights of way have been observed and respected by the community. With new owners moving in there is a feeling of sweeping clean all that has gone before, including rights of way which have been established and enjoyed and probably taken for granted by the community. This is causing huge divisions in the community there.
Yesterday I received a letter asking what action I am taking to preserve the rights of way in Portmarnock — an area where golf courses are prevalent and another is being developed. The writer said: "I have recently felt intimidated by security guards for using a right of way which I have consistently used here for the past 21 years." That is an indication of a huge problem and one that is being addressed, in part, in this Bill which will be amended to take into account the more wide ranging issues around Ireland. From that point of view it is very important to support it. If we do not support it we will give rise to even more business for the legal profession because disputes of this nature tend to go through the legal system in some form or other. It has been recommended to the people in Portmarnock to go to the High Court.
The people who will reap the best harvest out of not dealing with this crisis are the solicitors. The legal profession will certainly gain from any dispute that arises in relation to claims or access. Unless we are in the business of putting more money and more business in the way of the legal profession we should allow ordinary people to know their rights and ensure that landowners feel at ease and not at loggerheads with the rest of the community.
The one part of this Bill which concerns me could be amended. It has what I would call a touch of the John B. Keane feeling.
He advised me on the Bill.
It comes to light in section 3 (2) which states:
The occupier of land owes no duty of care to a trespasser but he is not entitled intentionally to harm a trespasser except in necessary self defence of himself or another or in the defence of property.
This reminds me of the play The Field. I presume it is not intended as a licence but as a safeguard but it could be misinterpreted. An amendment would ensure that people who go on to property and trip over something are not liable to be set upon by a landowner.
The Bill is sound in so far as it addresses a huge problem. From that point of view I ask that it be supported. Let us deal with the amendments as they arise. Many of us in this House would have direct experience to bring to bear which could help this Bill become the kind of comprehensive legislation required.
I understand Deputy McManus is also sharing with Deputy Crawford.
I welcome this Bill because it raises an issue that has implications for many people, not just landowners and farmers but whole communities who have been prevented from enjoying and developing local resources because of the crazy system that applies in relation to liability. The failure of successive Governments to tackle this problem has diminished and impoverished many aspects of Irish life.
The immediate issue that the Bill tackles relates to land and landowners. Quite clearly the current system places landowners in an impossible position in that they cannot protect themselves against insurance claims, particularly if, for example, they have a national monument on their land. This matter has been raised many times by the IFA and local landowner groups but has never been resolved. Nine or ten years ago the Law Reform Commission was given the task of examining the whole question of public liability and, despite many promises, nothing ever materialised. I can remember my local county council being promised quite often that something was imminent, that decisions were being taken and that proposals were forthcoming. The Minister said the Commission paper would be ready in a matter of weeks. If that is the case and if the Bill does nothing else but put the skids under the Law Reform Commission and the Minister to tackle the problem it will have been well worthwhile and will have served a vital purpose.
The Bill is a welcome start to facing up to the larger question of liability. In County Wicklow there is considerable pressure on landowners and farmers. We have a national park which encompasses public and private land. We are close to the largest city in the country and that has its own spin-off effects in that there are many people visiting the county, day trippers, hill walkers, people involved in recreational pursuits. Glendalough, in the heart of the national park, has the highest number of visitors to any site in Ireland. We are already experiencing the difficulties caused by many people walking on private lands. It certainly has not been helped by the insensitive placing of an interpretative centre in our mountains, but that is a separate issue. There are other sites of equal importance to Glendalough that we are only beginning to appreciate and which are being badly affected by the failure of the Government to deal with this whole question of landowners and their liability.
I can just cite one example, an important historic site just outside Baltinglass, Brusselstown Fort, which is considered to be one of the largest urban prehistoric settlements in Europe. It is an enormous area spaning about 38 acres. There is evidence of a very sophisticated urban settlement from prehistoric times. It is an area that has already achieved certain fame because of the interest shown in it by historians and archaeologists. It is also placed in an area that is rich in archaeological remains. It is a very rich part of County Wicklow as far as archaeology is concerned. Baltinglass is an area rich in history. However, its modern history is as an area which has a high level of unemployment. It has not seen the type of tourist related development that one would wish to see although it is an ideal location for encouraging visitors and tourists, people interested in heritage tourism, to come in and explore the archaeology of the place.
There is an increase in heritage tourism and an interest in European history and pre-history that we should be able to develop and exploit as a county. At the moment if one climbs up to visit Brusseltown Fort one can see the remains of the ring around the fort but outside that ring there is another ring of defences not made of stone but signs saying "Keep out", "Private", "No Trespassing", "Do not Enter". This is a modern defence that has been set up by local landowners. Brusselstown Fort is on private land. Access to it is across private land. People who come to visit it are, inevitably, dependent on private landlords to gain access.
Visitors cannot gain access to this important national monument because of a natural caution on the part of the farmers. I can understand the farmers' fears. I can appreciate how difficult it is for them to reconcile their natural hospitality and openness towards visitors with the dangers those visitors bring if they come onto their land. There is an inherent contradiction there. At present, Wicklow Tourism is encouraging, developing and promoting archaeology and encouraging visitors to come in. The visitors come but when they arrive at the site they are told to go away, to keep out. It is an understandable problem but unfortunately it seems that the Government do not understand the urgency of the case in relation to landowners. We are a highly litigious country. The failure of the Government to act has made us more so. One cannot move nowadays without somebody thinking in terms of insurance claims and landowners are left hanging out to dry as a result.
This matter has to be tackled. I am particularly conscious of this in my own county because we are very open to visitors. We want to welcome visitors but we are not able to do that at present. We are experiencing the bad effects on visitors and tourism and not getting any benefit. This is an opportunity, if we are serious, to deal with the problem once and for all.
I too, like Deputy Sargent, would add a caveat to section 3 (2). There is no way I would support the principle that a person can intentionally harm somebody else in defence of property. No matter what the circumstances, property is not as important as human beings. However, that is a minor element to the Bill and obviously can be dealt with by way of amendment. I do not think we have hit the Texas style form of retribution just yet.
The essence of this Bill is good, it is facing up to the facts of life that farmers and landowners have to face every day of the week. I am very concerned that the Government is simply, yet again, fobbing us off and saying, we can have jam yesterday, jam tomorrow but never jam today. This matter needs to be dealt with quickly, not just for the private landowner but for the public owner, in particular, Coillte, who are also badly affected by this.
I want to thank the Technical Group for sharing their time with me. I would also like to thank them for their very clear support for the Bill put forward by my colleague, Deputy Deenihan. I congratulate him for introducing it.
Farmers and landowners are in a state of shock at the fact that this Government has not only failed to introduce legislation to defend the rights of landowners but now, when the Fine Gael Party has made a genuine effort with this Bill, all they can do is reject it. The Minister's approach is to await the Law Reform Commission's consultation paper which, he says, will only take a few more weeks. That of course means that this Dáil session will be over, the summer will be gone, the tourist season will be over. As far as the Minister is concerned, he hopes the media will forget about it, the farmers will give up and he will not have to do anything about it. I say landowners will not give up. There is no point in the Minister putting his head in the sand.
The Minister, in his refusal to accept the Bill, seems to suggest that children should be treated differently from adults. Farmers and farm families — and the Minister would recognise this being from a rural constituency — do not have to be told of the dangers to young people on farms. Their own children are too often the victims of farm accidents. Farm organisations, especially the one with which I was involved in, the IFA, have carried out major educational programmes to prevent this happening. However, landowners cannot be expected to lie awake at night worrying in case children enter their lands when they see a tree or a pool of water. The Minister spoke about this also. We all know children are inquisitive people, but there must be some degree of parental control. Farmers like to see children enjoying their trees, enjoying the water, but they cannot be held responsible for other people's children. We cannot expect farmers to watch every pool of water, every tree. I hope the Minister's attitude is a joke. Does it mean we have to cut them down, fill all the water holes and spoil the scenery of the country, a scenery that attracts tourists? Farming opportunities are closing down as a result of the Minister's total failure in Europe to allow farming to continue as we know it. The fact that the Minister has to go to court in relation to the beef situation is proof of how he has failed.
Tourism is the only real alternative. We have heard Deputy McManus and others speaking about its importance. Outdoor pursuits, horse riding, walking are all very important aspects of tourism and landowners want to co-operate in all this. For the most part, they do not want to have to close their farms, but one can see how difficult it is for farmers to get insurance, it is not difficult to believe that landowners may soon not be able to get insurance at all. Insurance alone is not the answer. If claims go up, so will the cost of insurance. Insurance companies will soon rule out certain historic areas. I believe they are already doing that. Why should landowners have to carry this extra cost? Many of them cannot afford it. All of this is simply because of the failure of successive Governments to introduce proper legislation.
The Minister said that amenities in our countryside should be used to the fullest extent possible, both for pleasure and profit. I quote from the Minister's speech:
These amenities have an attraction for visitors. Therefore, it is in the wider interest of our national economy that these attractions should continue to be available to those who seek them out. There is considerable untapped tourism potential in our national heritage, particularly in the area of outdoor leisure pursuits. Properly utilised this potential could be a source of considerable revenue to local economies and should underpin in a vital way the social and economic cohesion of these communities.
How can he expect landowners and farmers to allow people to come on to their land if they are being held completely responsible for any branch, rabbit hole or anything over which people may fall? I talked to a person involved in the tourist industry today. He wants to be involved in horseriding and so on. There is a pool inside his gate and there are trees. Can he allow families with young children to come in and enjoy those facilities in the future? By failing to adopt this legislation the Minister is making the position impossible. He is closing the door to many people living in rural areas to increase their income from tourism. He is ignoring the position on the ground.
I am extremely worried that any Deputies who spoke openly in local areas of their support for this type of Bill seem to be slow to speak here in this Chamber. I wonder what will they do next Wednesday night. Will they show the commitment to change the law they have given so freely at county council level and so on? We have seen the law changed at the drop of a hat in respect of Mullaghmore and other matters. Yet all that can be done with this Bill introduced by Deputy Deenihan is not to amend it or to improve it but simply to say that better things will happen sometime. When will it happen? As I said in my opening comments, the tourist season is now well underway. It is ovbious that nothing will happen this year. Can farmers, landowners and people involved in the tourist indusry hope that even next year such a Bill will make it possible for them to allow people onto their land? I suggest the Minister reconsiders his position. The House should accept the Bill introduced by Deputy Deenihan and if amendments are necessary, they should be made.
As I stated earlier, the adoption of this legislation will allow families to sleep at night. Recently, a landowner's wife rang me at 2.30 a.m. after hearing there was a possibility that a case would be taken against her in regard to an incident on land some ten miles away from her home. I do not think the Minister has any idea of the anxiety that is suffered by farmers and property owners in respect of this matter. We want to deal with it in a positive way. We have not introduced this Bill as a political gimmick. We have put it forward to deal realistically with a problem that is causing enormous anxiety. I would like to hear the Government's commitment and guarantee that if they do not accept this Bill, they will put an absolute time limit on when they will introduce their own Bill. Otherwise farms will close up and tourists will go elsewhere. That is something this country in its present position especially in the west, cannot afford. I know that to be the case from people in my county and those involved in the tourist industry. They were looking forward to a positive result from the introduction of this Bill. They will be extremely dejected at the Minister's statement last might — and I gather the Minister of State will say much the same tonight — that he is not prepared to accept this Bill or even put down amendments to it which may be necessary. We are not saying the Bill is perfect, but then the Finance Bill was not perfect either.
I propose to share my time with Deputies de Valera, E. O'Keeffe and Ferris.
Firstly, I compliment Deputy Deenihan on bringing forward this Bill for consideration tonight. Our discussion of this issue in the House reflects the concern throughout the country on the need to update the law on occupiers' liability.
The Minister in a well argued and detailed speech last night outlined the history and development of the existing law on occupiers' liability. From his arguments it is quite obvious that there are major omissions from the legislation we are discussing this evening. Regardless of the shortcomings of this Bill, any Deputy who drafts legislation must be complimented. It is a formidable task to do this considering the lack of resources any back bench Government Deputy or Opposition Deputy has at his or her disposal as a Member of this House.
The Minister's speech emphasises the multi-faceted aspects of this matter and it is quite obvious that it is not possible to have the law updated or amended without very thorough and detailed examination being given to all matters pertaining to it. We cannot narrow the focus of this issue to the farming community alone. It is an issue that concerns all occupiers' liability regarding the duty of care that is owed by all occupiers of land or premises towards all entrants onto their property. Obviously, most of us are concerned with this area of the law, as tenants or as householders, and it is not jsut confined to private householders or landowners, but it also concerns the business community and State authorities — for example, educational institutions and Coillte.
The English Occupiers' Liability Act, 1957, is often quoted as the remedy to our ills. However, the Minister's speech last night clearly emphasises that this Bill would not be sufficient for our position and I am glad to note that other state models may be examined in this context. At times we have slavishly followed the English example with regard to law and I welcome the Minister's mention that a trawl of our European partners legislation in this area might assist us.
While I accept that this whole area is complex and needs very detailed and careful consideration, I believe that sufficient time has elapsed since the Law Reform Commission was requested to draw up a detailed report and that we should have that report at this stage. I understand that report was requested in early 1992 and I hope that this consultation paper will be available to the Government and the Minister without further delay. Naturally, the Minister will have to have consultations with the various interested parties and I hope he will ensure that all groups having an input into this legislation will be made keenly aware of the urgent need to come to a final set of recommendations and that consultation in this instance does not necessary imply delay.
Early in April, Deputy de Valera and myself raised this issue on the Adjournment because of our desire to reflect the views and worries of our constituents on this matter. From the public's point of view enough commitments have been given about addressing the issue. I understand that the first commitment was given in the context of the Programme for Economic and Social Progress and a specific commitment was given in the Programme for a Partnership Government that the incoming Government would urgently reform the law relating to the liability of occupiers for injury resulting to persons on land or other property. The necessary legislation must be put in place at an early date and I cannot stress to the Minister the need to ensure that there are no further delays in rectifying this matter. I hope that the Minister would consider setting a target date because the phrases “at an early date” or “in the near future” do not catch the imagination or confidence of the public.
This issue has been left unaddressed for far too long and, unfortunately, it has landed many landowners in serious financial problems. Practically everybody is affected by the present unsatisfactory system. I need only instance landowners, the State and sporting organisations.
I come from a county and, indeed, a constituency which has always given a warm welcome to visitors. I am particularly concerned about our tourist angling industry which has been built up over the years by the diligence and great attention of the people in the industry with the full co-operation of landowners. Those landowners on whose land access is gained to waterways have outlined to me in detail on a number of occasions their concern about possible litigation. They are anxious that the necessary legislation should be placed on the Statute Book without further delay.
Recently this issue came home to me very forcibly when I learned that a number of angling projects for which substantial financial provision had been made were not proceeding at the speed we would wish because of the concern of landowners on whose properties the developments would be sited. It is unfortunate that my colleague, Deputy Crawford, has left because there were a number of projects for which we had secured funding. I have been speaking to some of the State agencies who would be involved in putting the schemes in place and on a number of occasions exhorted them to speed up the process. A senior Government official replied to me as follows, and I quote:
With regard to the projected expenditure for this year I would emphasise that the successful completion of these projects is dependent on the co-operation of the landowners on whose land the developments are to be sited. As I mentioned to you during our recent telephone conversation the question of public liability is raised by most landowners. There is concern on their part that any development on their lands to facilitate angling will expose them to increased risk. This had led to a number of refusals to allow development to proceed. I am aware that the legal position with regard to landowners' liability is under review by the Law Reform Commission. It is in all our interests that the matter receives urgent attention.
The Minister of State, Deputy Gallagher, spoke earlier about the valuable amenities of our countryside and the need to make maximum use of those amenities both from a recreational and an economic point of view. He is correct to state that our outdoor leisure facilities are becoming increasingly important both from a recreational and job creation point of view and the wealth creation that can accrue from them.
I will conclude by stating that the issue must be addressed fully and properly. I hope that it will be possible to bring forward the necessary legislation at an early date, comprehensive legislation that will address every single item involved in this issue. I have every confidence that our Minister for Equality and Law Reform will bring forward that legislation without delay.
The Deputy will be waiting another ten years.
First, I wish to thank Deputy Smith for allowing me to share his time. I am also very pleased to take this opportunity once again to raise this matter here as it is a matter which affects every section of society. It would be a grave mistake to suggest that this is a subject which only affects those living in rural areas. It also affects the householder and, of course, tenants, companies and bodies such as health boards and local and national government alike. The law pertaining to occupiers liability is, however, more visible and graphic in the rural setting. When I last raised this matter with Deputy Smith in the Dáil on 6 April 1993, I highlighted the difficulties that faced farmers in particular with regard to occupiers' liability. The law is archaic. There is no legislation in this area. It is based on common law and so is subject to change on a case by case basis. At present, we have what is defined as invitees, licensees and trespassers. The law as it stands would seem to come down on the side of the trespasser at the expense of the landowner. This balance needs to be redressed immediately.
Is it any wonder that farmers have become so anxious about their legal position and the fear of litigation that they have erected signs to attempt to prevent people coming on their land? I am sure the Minister will agree that this goes against the traditional welcome that farmers have always given to the community. Such action has only been taken in desperation and from frustration with the present legal position.
On the question of fines, I would like to refer to the position in England which is interesting because the duty owed can be discharged in an appropriate case by placing warning notices on the land. I have been told by a number of lawyers that no lawyer, however eminent, could give, under our present law, any such guarantee to Irish farmers or, indeed, to landholders in this regard. It is well worth examining both the English case and, indeed, the law in our other European partners to see how best to approach this issue.
On 6 April, I underlined the need for updating and reforming the law immediately so as to allay the many genuine fears abounding in the rural community facing the 1993 tourist season. I know already of bookings for activity holidays in Clare for 1993 which have been cancelled due to the present legal limbo which exists concerning occupiers' liability. I would like again to appeal to the Minister to take such action as is open to him to try to deal with the immediate problem for the tourist season which has already begun. In this way the Minister could, as I pointed out before, show the Government's appreciation and recognition of the farmers' valuable role in tourism. I appreciate that the subject of occupiers' liability is an extremely complex one and I am aware that the Minister is anxious to introduce changes in the law as soon as possible. However, like Deputy Smith, when I hear the phrase "as soon as possible" I find it a little worrying because I am sure Members in this House on all sides realise that this problem must be addressed immediately. The Government's wish to introduce legislation in the area of occupiers' liability has been stated in the Programme for Government which is in line with the Programme for Economic and Social Progress on the matter.
In passing, I would also like the Minister responsible for the Office of Public Works, Deputy Dempsey, to do what he can to address the matter of access to archaeological sites for which he has responsibility in order to ease the present situation and enhance our tourism potential. Deputy Deenihan last night rightly pointed out the increase in activity holidays and the fact that there is also an increase in specialist interests such as botany, geology and archaeology. However, we must not forget the sporting and recreational activities which take place on farmers' land which also poses legal questions for all concerned.
To those who think that the problem of occupiers' liability has been exaggerated, I would like to point to our growing compensation culture here. Sadly, we must admit that this is a fact. Only the other day I saw a car with a sticker on the back window which read, "Hit me. I need the money". Whereas no doubt the driver of that car meant the remark to be nothing more than amusing it did indicate to me a changing attitude in Irish society which is leaning towards what is known as "compensation neurosis".
The need for change in the law concerning occupiers' liability has been evident for a long time yet we are still waiting for legislative action. I understand that the Law Reform Commission report and recommendation has been completed and it should have gone to print some weeks ago. I would like clarification from the Minister on this point because if that is so I would urge the Minister to expedite the printing of this report so that the proposals can be examined in full and legislation drawn up without further delay.
While I appreciate and share Deputy Deenihan's anxiety with regard to this matter, it would be more prudent if, rather than voting on this Bill, we base our stance on the legal position which will be presented to us by the Law Reform Commission who, after all, are the legal experts in this field. We should not pre-empt the findings of the Law Reform Commission. However, I would impress upon the Minister the need to expedite the report, there may be an opportunity then to incorporate some of the suggestions put forward in this Bill by Deputy Deenihan. This would give the wider focus which is suggested and is necessary for any forthcoming legislation.
I believe, as do others, particularly in our rural communities that this is an ongoing problem that needs to be addressed and I hope there are no further delays in doing so. Quite some time has passed since the Law Reform Commission was given the task of looking at this problem of occupiers' liability. I am aware it is not an easy problem to solve. We need to ensure that legislation is in place that will work and will allay the fears of many people, particularly landowners. I impress upon the Minister the need for urgent action and I hope this Bill will spur on such action.
I am pleased to have an opportunity to speak on this important Bill and respond to Deputy Deenihan's initiative in this area. The whole question of owner-occupier liability is a pressing concern of late, particularly among the farming community. It is an issue in which considerable interest has been expressed in my constituency and I commend Deputy Deenihan for bringing it to the attention of this House. This is a topic that merits serious attention and debate. I am aware of the concerns of the Irish Farmers' Association and farming organisations generally in this regard — they have every right to be concerned. I compliment Deputy Deenihan on bringing this practical Bill before the House, a Bill that is non-contentious and that does not involve cost. He is one of the great people of vision on the Fine Gael Front Bench at present.
While I congratulate Deputy Deenihan on his foresignt in bringing this matter before the House, I cannot support it for the obvious reason of the party Whip. We are still awaiting the results of the Law Reform Commission report in this area and it is only when this report becomes available that considered deliberation can be given to the form new legislation in this area should take. The most effective way to draft legislation is by first having all the facts and analyses at one's disposal. I call on the Minister, when considering legislation in this area, to take into account the many good ideas contained in this Bill which has much to offer.
There is real fear and concern among the farming community and property owners generally regarding the whole issue of owner-occupier liability. At present farmers can be held liable for injuries caused to people walking or trespassing on their land. Farmers cannot afford to have such punitive liabilities hanging over their heads. The law in this regard is antiquated and is in need of reform. In addition to being out of date current legislation is also wholly inequitable in that it places entire responsibility on the shoulders of the farming community and property owners. This is patently unfair and I can well understand the concerns of the farming community. Farmers are not kill-joys. They are aware of the beauty and splendour of our countryside and have no wish to deliberately deprive their fellow citizens of the various pleasures the countryside has to offer.
Perhaps more than any other group in society, farmers work closely with nature. Their work is conditioned by the rhythms of nature and by the seasons. When people from towns drive to the country to show their children the splendour and beauty of the Irish countryside, the cows in the fields, the rabbits and the hares, it is very difficult for a farmer to prevent them from entering his land, even though they are probably illegally tresspassing. Farmers do not wish to jealously retain the pleasures of country living for themselves but they have every right to protect themselves from punitive damages that may arise.
We live in a litigation conscious age where no opportunity is lost to obtain money as a result of a perceived injury. I have no doubt that many claims for compensation are legitimate. However, as many Members of this House know, many fraudulent claims are made and what is commonly known as "compo" has become a mini-industry. The level of awards is such that farming families could be ruined and left without a roof over their head. The farming community needs to be protected from this unscrupulous behaviour. Real fear exists in this regard and that is why many farmers today prevent people from going onto their lands. Very often it is difficult to prevent people from trespassing onto lands through which flow rivers and streams. As one who comes from an agricultural background I would find it heartbreaking to prevent someone from going onto my holding. It would be unfair to do so because there are many things on the land that would be of interest to others.
In recent times gun clubs, fishing clubs and coursing clubs have taken out insurance in order to protect themselves and indemnify property owners from accident claims. The real problem does not arise in this area because these clubs receive permission from landowners to go onto their land and they have protection. Many property owners have public liability insurance which indemnifies them against a claim to the value of £2 million. However, such cover is beyond the reach of the average property owner or farmer because the premium is prohibitive. It is well-nigh impossible for the agricultural community to get insurance cover at this level unless they are prepared to pay exorbitant premiums. As a rule, farmers do not prevent people who are interested in exploring the countryside from entering their land. Very often boats and other buildings attract people from afar who come to explore, examine and identify with the heritage. Farming colleagues of mine find it very difficult to stop people from going onto their land.
The current position with owner-occupier liability is such that farmers must actively discourage people from going onto their lands, given the potential financial risks this might entail. Modern technology and machinery on farms, such as combine harvesters, tractors and other pieces of modern equipment attract adults and children and injuries may occur. Farmers and property owners are compassionate and understanding people. I know that Deputy Deenihan, in bringing forward this Bill, took into account the needs of rural communities.
It is regrettable that farmers must discourage people from entering their lands. Financial risks to farm families are selfevident, but there is another dimension. Many urban dwellers like to enjoy the pleasures of the countryside. However, when farmers, of necessity, have to refuse access to their land it perpertuates an unnecessary urban-rural divide, which was witnessed in the past. Every effort has been made to build up urban-rural relations. When urban families who go on an outing on a sunny Sunday afternoon and are prevented by a farmer from going onto his land difficulties may arise. This Bill is designed to deal with such problems. I urge the Minister to act as soon as possible in this area. I call on him to indemnify property owners against any liability for persons who go onto their property without the express permission of the owner. This is the only way the current problem can be solved.
Farms are potentially dangerous places because of the many activities carried out and products used with which I can identify, such as slurry pits, silage pits and acid for the preservation of silage. Because of the inclement weather during the last few weeks, many of those hazardous products have seeped onto the land. People can experiment. They might roll the barrels around the field, and they can inadvertently get burned or damaged, even with the best will in the world.
For all those reasons, the Law Reform Commission should be asked to bring forward their report as quickly as possible, so that we will see this type of Bill come before the Dáil. I am quite sure it will have the support of all sides of the House. I have no doubt about Deputy Deenihan's support for such a Bill. I am delighted to have had the opportunity to highlight the problems and I look forward to a Government Bill being in place.
Debate adjourned.