Wild Land News no 55, Spring 2002

COMMENT: Focus on Access Article

Fiona Anderson examines the changes to the Access section of the Land Reform Bill as a result of the public consultation process.

The Scottish Parliament laid a heavy load on itself when it published the draft Land Reform (Scotland) Bill in February 2001. The consultation elicited 3,587 responses, more than to any other bill ever published in Scotland. More than 80% (2,914) related solely to Part 1 of the Bill on access, and of those 76% (2222) came from individual hill walkers, mountaineers and members of clubs and societies. 14% (459) of the responses to Part 1 came from landowners, the remainder from Community Councils, local authorities, recreational and sporting organisations and others.

Recreation interests criticised the Bill for diverging from the consensus that had been achieved in the Access Forum, and for including too many new provisions that could be open to abuse. In particular, Section 9 would allow widespread restriction of access by landowners, Sections 8, 10 and 16 gave local authorities new powers for suspension of access rights, exemption of particular land and conduct etc, while Section 15 created a new criminal offence. These provisions would seriously restrict the current freedom of access traditionally enjoyed in Scotland.

Land management interests were concerned that more of the measures for management of access should be included in the Bill rather than relying on the Access Code (which would have advisory status like the Highway Code.)

Recreation interests opposed this as complex legal definitions and measures would be required, providing a field day for lawyers, compared with flexible co-operation under the Code. Land managers also sought exclusion of commercial recreation activities which might be in competition with a landowner's enterprise on his own land, and were concerned to emphasise path provision particularly over enclosed land, and exemption of crops, including grass grown for hay or silage.

Other issues included whether to restrict access to "land set out for a particular recreational purpose while it is being so used." Failure to include golf courses within access rights could effectively block access on foot to many popular areas. And what about grouse moors?

Many of these criticisms have been listened to. Sections 8, 9, 15 and 16 have been dropped, but sadly too much remains in the Bill that is of great concern to those of who enjoy the freedom of Scotland's countryside in the traditional way. For example, access is to be restricted through farm steadings, supposedly on safety grounds, although many footpaths run through farmyards, while access to golf courses is to be restricted to passage, not recreation, which rules out informal sledging and skiing in winter. Business and commercial activities are to be excluded from access rights - does this prevent mountain guides, professional naturalists and photographers from walking over the hills? And grass crops are to be exempted - expect grass fields to spring up all over Scotland!

Dave Morris of the Ramblers Association points out there is evident confusion and lack of clarity in the access legislation that will create confrontation and conflict between walkers and land managers for years to come. This is because the common law right of walking harmlessly across land will be different from the new statute law, so that for example "commercial" walkers would have to take access under the former law. The Minister appears to believe that there is a Law of Trespass in Scotland. Thus the Bill is couched in terms of aiming "to confer and regulate public rights of access " and "creating access rights" instead of "securing" the existing common law basis by which we take access today. Which is what Angus Mackay, the Depute Justice Minister, said was the governrnent's intention when he spoke on the proposed legislation in November 1999, i.e. "to codify what happens currently."

Such an approach would fit well with the recommendation of the Scottish Law Commission whose preliminary view was that the public rights should be placed "on a statutory footing, subject to preserving the full extent of the present common law rights." Their fundamental objection to the draft Bill was that it is a "source of confusion for local authorities, police and members of the public" An approach which "confers access rights" will produce legislation which is restrictive, giving too many opportunities to those who wish to restrain access unreasonably. We may lose more than we gain.