Wild Land News no 53, Summer 2001

Foot and Mouth Disease, Access and the Land Reform Bill Article

Charles Wallis takes an overview of the epidemic and considers the implications in the light of the draft access legislation

Problems of access to the countryside have been highlighted recently because of foot and mouth disease and the Land Reform Bill. On the 19th February 2001 signs of foot and mouth disease were noticed in an abattoir in Essex. The outbreak was traced to a pig fattening 'farm' in Northumberland where the animals were fed with swill made from waste food from local restaurants. It is thought that the infection came into the country from meat illegally imported for the restaurants. Once the first outbreak was discovered it became clear that the infection was spreading rapidly around the country, and into Scotland via the Longtown cattle market. Cumbria and Dumfriesshire were some of the worst affected areas. Foot and mouth disease affects all cloven-hoofed animals and is caused by a picorna virus. The current outbreak is due to the highly virulent pan-Asiatic type O. In animals the disease presents with fever, followed by the development of blisters in the mouth and on the feet. Though humans can catch it in exceptional circumstances it does not pose a risk to us. Foot and mouth should not to be confused with hand, foot and mouth disease, which is a mild blistering disease of children, caused by a different virus.

Consequences for agriculture and recreation

Despite hysterical press coverage of the 'deadly' disease it is nothing of the sort. To affected animals foot and mouth disease is essentially a mild infection but it does tend to linger and is highly contagious. The significance of the disease is in its economic impact to farmers. It results in lower milk yields and weight loss, hence lower productivity. Foot and mouth remains one of the few constraints on international trade in livestock. The occurrence of even a single case in a previously disease free country results in an immediate export ban. To maintain disease-free status a country has to ensure high levels of animal health standards and cannot use vaccination to prevent the disease. It is endemic (always present) in many third world countries and the greatest risk is imposed by illegal imports from infected countries. The economic effect of foot and mouth on farming in a previously unaffected country is plain to see, and vaccination is no solution since its use renders the animals unfit for export. In this country the spread of the disease was facilitated by the long distance trading of livestock. It was suggested that an illegal practice of trucking animals around the country, merely to claim fraudulently for EU subsidies, exacerbated the problem.

At the time of the outbreak, movement restrictions on livestock were put in place to stop the spread of the disease. In addition, the government encouraged widespread restrictions on access to the countryside by the general population. Notices blocking access appeared all over Scotland. Walkers, mindful of their responsibilities to the countryside they respected, acted as good citizens and stayed away. This was an unprecedented situation. The hills that were generally considered to have open access were effectively out of bounds to walkers and other recreation groups. Ironically this occurred during one of the best winters for years when local businesses should have been experiencing a bumper season. As time wore on it became apparent that the rural economy was beginning to suffer more from the access restrictions than the disease itself. It became apparent that tourism probably earns five times more than farming for the rural economy.

The "Comeback Code"

Once the outbreak in Scotland came under control the government realised the economic consequences of the draconian access restrictions and sought to improve the situation by advising that the countryside was 'provisionally open' in certain areas and published the so- called 'Comeback Code' just months after effectively banning access. Unfortunately, farmers and landowners have been slow to implement the code, perhaps understandably because of fear of the disease. This resulted in access to the countryside becoming an uncoordinated lottery. Some estates, notably those owned by conservation bodies and progressive landowners such as Grant of Rothiemurchus opened early, much to the welcome of walkers. Others remained firmly shut without any logic behind the pattern.

The result was the ludicrous situation where one estate might be open but with a neighbouring estate closed, the closures bearing no relation to the real risk of the disease. In fact the disease never spread north of the Forth-Clyde gap and yet vast tracts of the Highlands remained closed. Long distance footpaths such as the West Highland Way were particularly badly affected as a single farmer could block the route. By Easter that route finally opened but signs remained all over Scotland. Many farmers were not following the Scottish Executive's advice and there seemed little that could be done. Walkers were unwilling to pass intimidating signs.

Eventually in May, Rural Affairs minister Ross Finnie announced that the veterinary advice was that public access posed an extremely low risk and that new guidance was in favour of access. He noted that the plethora of signs driven by an apparent rather than real risk was unhelpful and damaging the rural economy. Finally by June with some areas still closed he announced a crackdown on unofficial closures. Any remaining that were not listed on a government website could be ignored. Commonsense had prevailed but not before immense economic damage had been done. While affected farmers could claim generous compensation, small rural business such as hotels, bunkhouses, tearooms or outdoor shops were offered a meagre three months rates relief (if they could demonstrate "hardship") and some marketing activity by the much maligned tourist boards. Many of these small businesses do not have the financial backing of the large sporting estates, and may well become untenable as a consequence.

Access legislation

By coincidence the Land Reform Draft Bill was published at the time of the first foot and mouth outbreak, in February 2001. These events might not seem related at first sight but they bring a number of issues together. Since the inception of the Scottish Parliament, land reform has been on the agenda. The Land Reform Draft Bill and its related access code are the result of the consultation process started by the 1999 White Paper on land reform and the recommendations of the Access Forum. The aims were to legislate on rights of access, and community and crofting ownership. The bill starts by stating that everyone has rights of responsible access for recreation and passage. A good start but the devil is in the detail that follows. Many of the recommendations of the Access Forum have been significantly altered since it was published in 1998. It is thought that behind the scenes lobbying by farmers and land management interests since then has been responsible for many of the changes.

The most controversial part of the Bill is section nine. This states that the owner of land over which access rights are exercisable may suspend access rights for as long as required because an activity taking place on that land is likely to be interfered with by access rights, or constitutes a danger to the person exercising that right. All the owner has to do is erect some signs indicating what the activity is and how long access is denied. In other words a landowner could block access indefinitely simply by erecting a sign saying 'No access, Land Management Operations' There is no requirement to notify local authorities and no right of appeal against the suspension. One reason for this section is to allow landowners to undertake potentially dangerous activities such as tree felling and pesticide spraying. The health and safety executive were concerned that bill in its original form would be in conflict with UK health and safety legislation, so this section was added. Unfortunately it leaves the law open to abuse by anti-access landowners.

Other sections are causing concern. Local authorities can suspend access rights because extreme weather constitutes a risk to persons on the land. Potentially that means they could suspend access because of avalanche risk, thus taking away a climber's ability to make a risk assessment for himself. Local authorities can also exclude an individual who persistently contravenes the Access Code.

Returning to the issue of foot and mouth it is clear that unofficial signs blocking access could become both legal and widespread if the Access Bill goes through unmodified. Unlike foot and mouth disease which will hopefully go away, this new threat could be long term, and the government will not be able to advise in favour of access, as they belatedly did when they realised that some landowners were acting irresponsibly.

The consultation period for the bill ended on June 30th after being extended because of the access problem created by foot and mouth disease. The Wild Land Group as a body and some of the steering team members as individuals have sent in comments. In addition we have lobbied our local MSP. The bill has a long way to go before it become statute and there is still time to influence the process. The lessons of foot and mouth, while highlighting the potential abuse of access laws, have also shown how important access is to the rural economy. It is important that this legislation is balanced and fair to both sides, in what has unfortunately become a war of words between both camps.

Though the consultation period has ended, details of the Draft Land Reform Bill are available from:

Andrew Taylor
Scottish Executive Rural Affair Dept
Land Reform Branch, Room 106
Pentland House
47, Robbs Loan
EDINBURGH EH14 1TY
Website www.scotland.gov.uk/landreform