Comments On The Draft Land Reform (Scotland) Bill

Thank you for the opportunity to comment on this important piece of legislation. We have concentrated on the access element of the Bill, as it is the area where we have most to comment upon.

Access Flaws

The Wild Land Group welcomes the principle of access to land and inland water and the inclusive nature of the proposed rights, by individuals and groups, is excellent. The new powers for local authorities to clear obstructions and signs are very good too.

However there are some serious flaws in the Bill which stem from two main points:

The Bill is different in several key ways from the recommendations from the SNH Access Forum - a body which had already negotiated a framework for responsible access with all the key players.
There is too much detail and restriction in the Bill; much of the detail should be in the Code of Conduct where a more reasoned approach can be established and reviewed. Indeed the Bill and the Code do not read easily together at present, which can be improved by significant chunks of the Bill being deleted or amended and put into the Code,

This draft Bill loses sight of the overriding aims of such legislation i.e. improving access and giving new rights for responsible access. There should be a clear statement at the start of this section of the Bill that sets out the guiding aims of the legislation. Such guidance would then inform and clarify the rest of the Bill which would flesh out these aims. Currently without any overriding objective, the Bill reads very disjointed without a clear drive to consistently improve access and confirm much of the existing de-facto access rights in Scotland.

We feel strongly that in its present shape, this legislation will reduce the current de-facto access opportunities and create conditions for great conflict in the countryside. The balance of power would swing significantly towards land owners, with local authorities and the police having great difficulty in trying to adjudicate between conflicts that would arise solely from this legislation.

Our more detailed comments are listed below, followed by our conclusion.

Detailed comments

Section 4: Land over which access rights not exercisable

Much of the detail here should be in the Code, for example constraints on cropped land. We also are against farmyards being excluded from the right of access, as many routes into the hills traditionally go through farmyards and should continue to do so. The presence of walkers on routes helps deter criminal activity and walkers are often crucial as the 'eyes and ears' for farmers and land managers.

Section 8: Emergency suspension of access rights

There is no need in our opinion for such draconian emergency powers, as risks such as fire, flooding etc. are managed already without the being a huge outcry for legal constraints. There would be great pressure put on Local Authorities to declare emergencies, when in the past, the situations have been managed successfully without recourse to this type of prohibition.

Section 9: Suspension of access rights by owner of land

This whole section should be deleted as it gives sweeping powers to land owners and managers to close off access without warning, detailed justification or review. This could lead to many repeated closures and great frustration and dispute. The power to close land with only a sign to be erected completely negates the aims of Section 14 which tries to get obstructive signs removed.

This is the most unbalanced section of the Bill and completely hands over the decision making for access to land owners and managers, with no power of review, appeal or repeal. With this section in the Bill, the rest of the sections are pretty hollow as this will override most of the other positive aspects of the proposed legislation.

Section 10: (Local Authority) Power to exempt particular land and particular conduct from access rights

We feel that this power is not necessary as there is no such power at present and there is not a large problem that requires such serious powers to be enacted. The Code of Conduct can spell out what constitutes responsible behaviour and the loss of access rights if behaviour is not responsible. Again in respect of the proposed power to exempt particular land, the local authority would come under huge pressure from land owners to use such powers. This would all be a drain on local authority resources and would not assist in the primary aim of this legislation, which should be that of improving access in Scotland.

Section 15: Expulsion and Exclusion: Offence provisions

We feel that this is completely the wrong way to tackle access problems - through criminalizing individuals and creating potentially huge workloads for the Police. The long tradition in Scotland has been responsible access and a civil remedy for landowners particularly aggrieved. There are already plenty of legal remedies for criminal activity on land e.g. theft, damage or destruction. The creation of a criminal offence through this section will cause great strain on the Police, the Courts as well as those potentially criminalized through breach of any small aspect of the Code of Conduct. Police should be used to fight crime not arbitrate over the finer points of access issues and land managers' demands.

This section also gives powers to authorised officers of local authorities to decide upon access conflicts through involving police constables, again a situation ripe for creating conflict and confusion. Access needs to be managed within a responsible framework, not immediately shunted into the criminal justice system, which is already hugely burdened in dealing with real crime. Ignoring a sign restricting access, erected under the power of Section 9, is hardly in the same league as crimes such as theft, threatening behaviour, being drunk and disorderly, assaults, etc.

Section 16: Exclusion Orders

The same problems as above arise from this section, in that local authorities should not be given the power to exclude someone. This has traditionally been the preserve of the Courts with all the correct rules of Court applying. There seems to be no right of appeal or redress by individuals which surely is against Human Rights legislation.

Conclusion

There needs to be a simpler Bill with a basic framework for the exercising of responsible access. The Code of Conduct can then deal with all the details and promote mechanisms for co-operation, understanding and education. Massive detail in the legislation on who can be excluded or restricted and by whom is not welcome and not necessary. It is likely that conflicts generated by the legislation will, in time, be blamed on the Scottish Executive, rather than individuals or landowners involved.

The recent matter of foot and mouth has shown the responsibility and compliance exercised by walkers and climbers, and also the reluctance of land owners to re-open access as quickly as possible. The proposed Bill will give land owners more scope to carry on in similar ways.

Good, well-organised and predictable public access is hugely important in rural tourism and rural businesses. The key role of spending by tourists, city dwellers and others in maintaining rural businesses has been revealed by the foot and mouth issue. This piece of legislation will not create the conditions for public access to be extended and made more certain. As a result there could be a significant adverse impact upon the rural economy.

The Executive are urged to revise this Bill significantly, to restore the original vision and confidence emanating from the proposals of the SNH Access Forum.

Alistair Cant	Steering Team coordinator, Scottish Wild Land Group
Tel:	0131-229 2094
E-mail	enquiries at-sign swlg.org.uk
Date:	27 June 2001