THE LORE AND LAW OF SCOTTISH ACCESS by Alan Blackshaw Yet nature's charms - the hills and woods - the sweeping vales and foaming floods - are free alike to all. Robert Burns To Chloris Why is it that the forthcoming access legislation in the Scottish Parliament is to secure a much wider, general, right of public access to land and water in Scotland, subject to safeguards, than seems likely to be the case in England and Wales? We have to thank those mountaineers and others who have persistently argued for a better understanding of the Scottish customary freedoms of access.They include Bob Aitken, Dick Balharry, Susan Harvey, Nick Kempe, Eric Langmuir, Dave Morris and Bob Reid - all of whom worked either in the Scottish Access Review 1989-94 or in the Access Forum since, or in both - plus Rennie McOwan with his Press articles, and Dennis Canavan MP. By contrast, in 1992, when I became involved, the newly-formed Scottish Natural Heritage (SNH) attached little substance to the customary freedom to roam, although otherwise supportive of outdoor recreation. The earlier Government view on freedom of access. On 4 July 1942 the Secretary of State for Scotland (Tom Johnston) wrote to the Minister of Labour (Ernest Bevin): 'You wrote to me on 16 June about access for holiday makers to open lands in Scotland. In Scotland the law is abundantly simple.There is no such offence as 'trespass' which is a term borrowed from English jurisprudence. Any member of the public is accordingly at liberty to walk over any land in Scotland provided he does so without damage to crops or fences and does not commit a breach of the various Poaching Acts. This applies to the whole country with the exception of private gardens or grounds which form the curtilage of a dwelling house or other private residence.The only remedy open to a proprietor who finds himself aggrieved by the presence of any members of the public is to raise an action for interdict.This must be directed against the individual members of the public concerned and is so expensive a process that it is seldom resorted to unless the action of the individual or individuals is persistent and of such long continuance as gives annoyance to the owner of the land in question. The Access to Mountains Act of 1939 did not extend to Scotland for the simple reason that it was not required. In these circumstances, I think it would suffice if I were to make an appeal through the Press to owners and holidaymakers alike reminding them that though there is no law of trespass in Scotland, the Government hope that landowners will facilitate access to moorlands for workers from factory, mine or shipyard during their short holidays and that workers on holiday will be considerate towards other interests and be careful to avoid disturbance of stock on hills and damage of any kind.' My experience since the 1950s was of a long-standing fundamental liberty or informal right, enabling us to take harmless access to land without seeking consent, lawfully and without trespass, as a normal convention of society, usually accepted without question by landholders and the public alike. However, SNH were taking a contrary view: that, legally, 'Most people on land are in the position of being trespassers and potentially subject to the use of 'reasonable force' to remove them.' This was associated with the idea that harmless trespass was a 'civil wrong' and had a 'stigma' attached to it. As some 750,000 hillgoers visit the Highlands annually, spending over £160m and relying on the freedom to roam (with very few incidents, given the concurrence of landholders), the idea that most (or indeed many) of them were really trespassers open to removal by force seemed unlikely. Hence I began research into the earlier views, eventually through the Access Research Project of Scottish Environment LINK. This latter was set-up in 1995 under the guidance of Dave Morris (Ramblers' Scotland) and Nick Kempe (Mountaineering Council of Scotland-MCofS). I was grateful also for the help, as appropriate, of SNH staff; and of Prof Neil MacCormick as regards especially use of the Edinburgh University Law Library. The long-standing Government view A key discovery was the Tom Johnston 1942 letter (see Box), confirming that 'Any member of the public is at liberty to walk over any land in Scotland provided he does so without damage to crops or fences' and that 'there is no law of trespass in Scotland'. Another document showed that even the landowners had agreed, advising the Government in 1961 that:'There is no law of trespass in Scotland ... If people choose to picnic on a lawn in front of a house, the owner can do no more than point out the private nature of his property and of his entitlement to its exclusive use and enjoyment. He cannot prosecute for trespass. Force cannot be used to remove his uninvited guests, although if they persist in coming and picnicking regularly, an interdict against them could be obtained'. The 1967 Government U-Turn When the Government was faced with the problem of increasing visitor numbers in the 1960s, it should perhaps have moved to some Scandinavian solution by which the freedom to roam was formally recognised as the basis for access (broadly as now proposed), with effort and resources committed to making it work. Instead, it made the mistake of trying to discredit the Scottish traditions of freedom of access. In introducing the access provisions of what was to become the Countryside (Scotland) Act 1967, the then Minister, Dr Dickson Mabon, said: 'Our predecessors took the view that such provisions were unnecessary in Scotland. This view was often very largely - and erroneously - based on the belief that there is no law of trespass in Scotland and that every Scotsman enjoys as of right the freedom of the countryside. In principle, however, there is very little difference in the law of trespass in Scotland and England. In both countries it is a civil offence against the personal right of property'. Another Minister added that someone on land without consent 'can be ordered to leave - and, if necessary, can be ejected.' This became the credo of the new Countryside Commission for Scotland (CCS), who developed it further in a series of statements and publications, quite reasonably believing it to have been based on an authoritative internal Government review as would be normal for such a major re-statement of the law. No Government review of the law of trespass By 1997 the LINK research had revealed such a gulf between the earlier consensus and the post-1967 New Views that it was highly unlikely that these latter could have been correct. Papers to this effect were presented at a MCofS Seminar in November 1997; and at the Access Forum in December 1997. Even so, I was surprised to find in early 1998, when the official files for 1967 first became available under the 30 Year Rule, that there had been no official review of the law of trespass in the 1960s; nor indeed was the question of trespass law mentioned in any of the Cabinet papers authorising the 1967 Countryside (Scotland) Bill, nor in the Instructions to Parliamentary draftsmen about the Bill. A query to the Crown Office as to whether something was missing from the files produced the response on 18 March 1998 that 'the Lord Advocate's Department have been unable to trace a Law Officer's Opinion on this subject, despite extensive enquiries'. The origin of the 1967 New Views What seems to have happened is that the landowners had been unsuccessfully pressing the Government for over a Century to introduce a law of trespass, with some penalty against trespassers. In 1959, however, following Parliamentary objections to changes in the law on deer poaching they had accepted that this would be quite impossible. There then followed a highly unusual juxtaposition of personalities and circumstances from which a possible, though in fact flawed, alternative solution was to emerge in the form of the New Views. Firstly, the new Scottish Development Department (SDD) was concerned to develop Highland tourism through new initiatives such as the ill-fated Aviemore Centre, the Cairngorm ski development, a possible road between Braemar and Aviemore through Glen Feshie, and County Tourism Plans involving increased access. Secondly, some of the main landowners were alarmed by this as a potential intrusion into their way of life, though welcoming the possibility of controlling access through Access Agreements with some financial recompense, as in England. Thirdly, the Nature Conservancy had set up a series of conferences across the UK to address the problems foreseen for the countryside in 1970. The Scottish Study Group (No 9) was to be chaired by Bob Grieve (later Professor Sir Robert Grieve), the well-known mountaineer, who was also Chief Planning Officer of the new SDD; while the Secretary was to be Frank Tindall, County Planning Officer for East Lothian. The first reference to the New View seems to have been in Study Group No 9 in February 1965, when Tom Huxley, for the Nature Conservancy, said that the trespass position in Scotland might be the same as in England. He was to write also, in a subsequent paper, that 'If realistic attitudes to camping – or any other form of countryside recreation - are to become second nature .... we cannot too soon suppress - if wistfully – the freedom principle. 'Meanwhile, Col Grant of Rothiemurchus was suggesting to the SLF that they submit a paper to Study Group No 9 - and also expressing the hope that 'the right wing Scottish interests will not go by default'. In fact two papers came forward, one from the SLF and one from the Nature Conservancy. The latter was by their Land Agent, the then Master of Arbuthnott, son and heir of the 15th Viscount Arbuthnott, with a lineage going back to Edulf Edulfing, first Lord of Bamburgh in 912 AD. It, unsurprisingly, saw access as 'a privilege to be obtained and not a prima facie right' and included the advice, subsequently quoted by the Minister (above), about the law in Scotland being the same as in England with trespass 'a civil offence against the personal right of property', whatever that may mean. The legal weakness of the New Views Frank Tindall has since claimed that the Group's Report had 'an authoritative definition of the Law of Trespass, finally laying to rest the myth that there is no trespass in Scotland' ('Memoirs and Confessions of a County Planning Officer', Pantile Press, 1998, at 308) but without explaining that the 'authority' was only that of the SLF and the Master of Arbuthnott. He also claimed that the 'report was circulated by the Government as a White Paper as the Scottish Office stated that they could not better it!' It is clear that everyone concerned at the time acted in good faith, believing in the veracity of the New Views; but there is a question as to whether it was constitutional for a Minister to be advised (if indeed he was quite so advised) to announce such a fundamental change of legal approach on such a tenuous and partial basis. The Master of Arbuthnott (new Lord Arbuthnott) was himself very surprised when in 1998 the Access Forum asked him about his 1965 contribution: 'It is ridiculous to give my paper such significance.It is an expression of view by myself who had, by that time, served the Nature Conservancy 10 years as its land-agent in Scotland and who had, by then, the experience of 13 years as a Chartered Surveyor with the professional qualifications their "Charter" implies.' Henry McLeish MP, when Minister responsible for the Civil Law in Scotland in 1998, told Dennis Canavan MP that he was unable to say on what basis the then Minister said what he did in 1967 (nor why indeed another Minister had said the opposite in 1959). In fact the true position was probably still that of liberty and lack of trespass as in the Tom Johnston letter (Box). As Lord Reed, Scotland's youngest Judge, said recently, Scotland, like England, 'is not a country where everything is forbidden except what is expressly permitted.It is a country where everything is permitted except what is expressly forbidden' (Leadingham Chalmers Lecture on 'Taking Human Rights Seriously', July 1999). The collapse of the new policy Although the Government had expected an annual expenditure equivalent to some £3m in today's money on Access Agreements providing for new access or increased control, the policy quickly foundered. This became clear in 1971 when Inverness County Council refused to pay their 25% of the costs of a proposed agreement with Col Grant of Rothiemurchus, on the grounds that they saw 'no reason why they should not continue to enjoy the privileges of access as in the past without any expenditure or restriction'. This may have disappointed Lord Arbuthnott (as he now was) in his dual capacity of a Member both of the SLF Executive and of the Countryside Commission for Scotland. He had referred in 1970 to 'the growing realisation that the products of the land in the form of attractive scenery and pleasant fresh air ... should be adequately paid for if other people seek to enjoy the right of participating in this product. ... I think we can see an increasingly valuable asset in this form of recreational use.' Instead, it all came to nothing, with the freedom to roam continuing to gather strength, and grants for essential maintenance and management eventually replacing those expected for the 'privilege' of access. Leave and license, not trespass Following some prompting by LINK members, SNH had commissioned Prof Rowan-Robinson in 1995 to advise on the significance of implied permission for access, as in the freedom to roam. One of his conclusions, suitably qualified, was that 'The law recognises the concept of implied consent.If the public have habitually resorted to land and it is reasonable to assume that the landowner has been aware of this and has done nothing to resist it, the law will imply consent. Members of the public taking access with implied consent are licensees, not trespassers'. This was welcomed as endorsing Lord Sands' 1930 view that 'when the presence of persons where they have no legal right to be is expressly permitted, or permitted by implication from tolerance, there is no trespass'. It encouraged the MCofS to conclude that mountaineers in Scotland, exercising a fundamental freedom pertaining to citizens, are technically licensees, present lawfully, and not trespassers. So much for the official insistence that 'most people on land are in the position of being trespassers', as against the long-standing reality that they may be licensees instead, with the lawful presence and protection against the use of force which goes with that status, just as the customary freedom or right to roam had always indicated. The future If this all seems complicated, remember that Tom Johnston saw the law as 'abundantly simple'. Doubtless it would have remained so had the Government not changed its position in 1967 on the uncertain foundations discussed above. A return to the Tom Johnston view would surely give an 'abundantly simple' basis for the new Scottish legislation in the year 2000. Happily the Scottish Access Forum has already made at least some progress in that direction. For further discussion, with sources, see The Edinburgh Law Review, September 1999, at 368; and the forthcoming Final Report of the Scottish Environment LINK Access Research Project (to be available from The Ramblers Association who have helped to fund the Project).    news of current developments The situation in England and Wales

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