- Introduction
The Mountaineering Council of Scotland (MCofS) is the representative body for hillwalkers, climbers and off-piste skiers, and receives core grant funding from sportscotland in recognition of this status. We are a membership organisation with about 1,500 individual members, plus 125 affiliated clubs that contain approximately 7,000 members. Our committee structure is entirely voluntary and appointments are the result of a democratic process. The professional staff complement is made up of three and a half posts at our Perth office.
The MCofS has played a major part in the access debate since our organisation was formed in 1970. We were central to the discussions that led to the signing of the Letterewe Accord, we have worked with the Scottish Landowners' Federation on the publication "Heading for the Scottish Hills" and more recently with Scottish Natural Heritage and the Association of Deer Management Groups on the "Hillphones" scheme, and we have been a member of the Access Forum since its inception.
With our long involvement in Scottish access issues, we welcome the government commitment to legislate for improved access opportunities, and firmly believe that the concept of a responsible right of access, as developed by the Access Forum, should provide much needed clarification of the law. We believe that the Access Forum proposals have the potential to create the circumstances in which opportunities for access to the countryside can be increased, whilst at the same time being managed for the benefit of all.
Our organisation does, however, have limited resources and we have relied on unpaid committee members to represent us on the Access Forum. The MCofS was happy to make this commitment because we believed we were participating in a significant and meaningful process. It is disappointing, therefore, to see that the Scottish Executive has chosen to disregard the recommendations of the Access Forum. This inevitably leads us to question the value of the investment we made in participating in this process.
We find the section of the draft Bill dealing with access to be seriously defective, since it ignores the principal recommendations of the Access Forum. A minimum requirement for an acceptable Bill would be that it should improve the status quo for those seeking access, and this Bill fails to achieve that minimum. Instead, it makes matters distinctly worse by adding new penalties and sanctions to those already available to owners or managers who wish to deny access.
In our view, this version of the draft Bill attempts to create "the right of responsible access", then by means of numerous technical issues and mechanisms, goes on to severely limit the exercise of this 'right'.
This response does not address the issues in the "Rights to Buy" areas of this consultation exercise. Our comments are restricted to the Access sections only.
- Fundamental Principles
This draft Bill represents a backward step. The MCofS believes that the public expect, and deserve, to be consulted on a much better draft version than has been presented in this consultation. The current draft is so different from the Access Forum's proposals that were endorsed by Scottish Natural Heritage in its advice to government "Access to the Countryside for Open Air Recreation" published in November 1998, and we believe so unworkable and poorly thought through, that we request that the process does not proceed to the writing of a Bill, but the writing of another draft Bill that should be presented for public consultation within the next year.
We will present our detailed comments on this current draft Bill, but sincerely hope that the public will be given an opportunity to participate in a consultation exercise relating to a sensible set of proposals, rather than the current version, which is causing widespread anger and disapproval, and which has damaged valuable relationships between the recreational and land managing interests in this debate.
If the Scottish Parliament is seen in its first term to be passing legislation that is unworkable, and against the intended spirit of the
lengthy preparatory reviews, then voters will be disillusioned with the current coalition Government in Scotland, and indeed with the working of the new Parliament. It is vital that this particular piece of legislation is recovered, that the Government's pledge to increase access opportunities is realised, and that the Access Forum's goal of achieving a package of measures that balance rights and responsibilities is realised.
The MCofS believed that the Access Forum represented the embodiment of the new legislative process in Scottish politics whereby draft legislation would be developed through consultation with Civic Scotland. The discussion within the Access Forum has been difficult and on many occasions stormy, but against many people's expectations it did reach a consensus on many issues. Admittedly there were a few points that could not be reconciled, but the fact that a consensus was reached on so many issues should not be underestimated. The Access Forum has been a landmark in constructive dialogue and consultation and was the perfect example of the engagement between potentially conflicting interests that the Executive has encouraged. We believe that if the consensus and advice is not reflected by the legislation there is a grave risk that the consultation process sought by the Executive and represented by the Access Forum's deliberations and conclusions will not only have been a waste of time but will be seen as such, and as a sign that the intention to consult before legislating is an empty form of window-dressing.
In particular, the Access Forum's advice was to have a simple Bill establishing a default right of access and to rely on the Code as the principal tool for education of the public and management of the exercise of responsible access. Both the Access Forum and Scottish Natural Heritage stressed that there had to be a balanced package of rights and responsibilities for both users and land managers. The package in this draft Bill has critically lost that fundamental balance.
- Political Commitment
This legislation is not meant to be about restricting or inhibiting old rights. Along with many other people we understood that the new legislation was aimed at providing new rights. Unless that principle is recognised and taken account of, this legislation will not meet the Labour and Liberal Democrat Parties' manifesto pledges from the 1999 Scottish Parliamentary election.
Building Scotland's Future. Scottish New Labour manifesto for the Scottish Parliament, 1999.
"We will introduce a guaranteed right of access, subject to a code of responsible behaviour for landowners and users, for all to enjoy Scotland's scenic heritage and countryside."
Raising the Standard. Scottish Liberal Democrats' Scottish Parliament Manifesto, 1999.
"We will legislate to implement the proposals of the Access Forum."
Many of our members regard access as a key political issue and believed that the Scottish Parliament could deliver on this kind of issue. It will be a great disappointment, and even a betrayal, if these manifesto commitments are reversed, with access opportunities made worse, the Access Forum ignored and an opportunity to create a better system for managing access spurned.
- MCofS Commitment to the Access Forum Recommendations
The MCofS is committed to the principles of the Access Forum's recommendations. It is vital that the eventual legislation must reflect those recommendations, which we helped to develop, and which were the result of long and arduous discussion. In setting up the Scottish Parliament, the Scottish Constitutional Convention regarded the working up of draft legislation by bodies like the Access Forum as being more productive in a modern Parliament than a second chamber of Parliament. It is paradoxical
that on one of the first occasions for this key plank of the Parliament's functioning to be tested, there has been a disappointing failure to stick to that principle.
We therefore believe that the legislation should more closely reflect the consensus recommendations of the Access Forum:
- Giving a more balanced package of responsibilities among users, owners and public bodies;
- Giving a clear right of responsible access that is comprehensible without expensive mapping and recording exercises to establish where it may or may not be exercised;
- Including some legislative recognition of the conservation safeguard and reducing the excessive land management safeguards;
- Leaving the detail of implementation for the Code, rather than the Bill; and
- Relying on co-operation, education and understanding rather than compliance and compulsion (except where this can be achieved by cross-referencing to existing legislation (e.g. litter, health and safety, conservation, etc.).
- Positive Points Within the Draft Bill
We believed that the original spirit behind this Land Reform exercise was basically a good one. That was to clarify the laws of access and to enshrine in law the general right of responsible access to land in Scotland. We were pleased to see this issue on the political agenda after years of being ignored, and welcomed the intention to improve access opportunities for the benefit of the nation's health, economy and our knowledge, awareness and appreciation of the countryside.
We are pleased to see that the draft Bill is attempting to give rights of access above, below and on the surface of land and inland water, and that the right will apply to individuals and groups. Despite attempts by land managing interests to remove water from this legislation and to discriminate against those who take access in the company of others, we are of the view that these are essential parts of a fair and reputable Bill, and must remain in the final legislation, however much the land managing lobby attempt to resist their inclusion.
If there is to be a commitment to educational resources to reinforce the responsible right of access, then the ability to take access in groups has to be a central part of the right. Those in charge of groups should have extra responsibilities that should be explained in the Code, but the basic principle should be that groups must come within the right. Clubs, teachers and guides should be encouraged and enabled to pass on the details of the responsible right and to carry this out where it has greatest effect; on the ground.
We believe that farmers' and landowners' concern about people making money out of their land is a spurious argument. Teachers, instructors, guides and rangers have invested heavily in developing their skills and careers, and should have a right to make a living using those skills. In our view the issue should not be about making money from somebodies' land, but about
encouraging those professions to pass on the principles of the responsible right to those in their charge.
- Primary Concerns
The MCofS has many concerns about the content of the draft Bill, but has chosen to highlight six aspects, which we regard as absolute fundamental flaws in this current version. The aspects we are most concerned about are:
Our more general concerns will be described in Chapter 7 of this response.
Section 9: The Suspension of Access Rights by Landowners
Section 9 must be removed. This power was never part of the Access Forum's recommendations; it is unnecessary and open to widespread abuse from those landowners who are unsympathetic to access and/or nature conservation. As recommended by the Access Forum, reliance on the Code, a more co-operative approach, and a cross-reference to existing legislation is all that is needed. Moreover, any statutory powers should obviously rest with public authorities, accountable to Parliament and or the Courts, and not with private individuals.
This draft Bill should be protecting a fundamental human right. We regard this absurd notion that certain members of society could remove an individual's right, at will, to be akin to allowing a certain group in society the privilege of removing other people's freedom of speech. That would not be tolerated by society, and neither will this.
The right of access is considered to be in the nature of a "real" right in Scots Law: it is a public right akin to the "real" public right to be on a right of way. "Real" rights (as opposed to rights against a person, such as contractual rights) are certainly capable of extinction, but not, in general, of being unilaterally suspended by another individual.
"Lawful activity" is nowhere defined, and is an example of an unnecessarily vague term that could be used unscrupulously to restrict access rights. A large number of "lawful activities" are potentially dangerous to recreationalists, and could be used within the terms of the statute to restrict access. Moreover, there is nothing to require an owner (as far as reasonable) to conduct the "lawful activity" in such a way as to minimise interference with the right of access, in line with the legal requirement to minimise losses claimable in compensation. This omission is contrary to best current practice whereby for instance, forestry operators leave a sufficient alternative route when an access track is affected by felling.
Whilst it is recognised that landowners are entitled to manage their land, they should not have powers to suspend access rights. The ad hoc restriction of an individual right by a non-accountable person or entity is unacceptable. Landowners should be entitled to put up notices requesting that the public refrain from exercising access rights in these areas, as long as they provide details of the land management activity and its likely duration. In return, there should be a responsibility on the part of those exercising access to observe reasonable notices. It is important, however, that the owner should have no power of unilateral enforcement, through the use of locked gates or other obstructions, or by physical expulsion or intimidation. A request should not amount to an order.
If enacted, this clause would be unenforceable, as hundreds of thousands of people would flout what they would see as a disgraceful law that is not in the public interest. Whilst many would ignore it, others would be turned away from a healthier lifestyle and potential visitors to Scotland would be discouraged at the holiday planning stage. Guidebooks, including those in foreign languages, would quickly convey the message that the access laws in Scotland had changed and that access to most countryside areas could be legally closed at an individual's whim. The Scottish Executive should be in no doubt of the damaging effects of Section 9 on tourism.
This legislation is meant to be about ensuring that anti-social landowners who are hostile to access are brought under some form of control. Instead, this current draft is a "Charter for the Mavericks" to accelerate their crusade against our tourism industry and their disregard for people's rights.
We are particularly concerned that Section 9 does not contain a right of appeal for those exercising their access right, to challenge a landowner's claim to a suspension of the right, where the visitor has reasonable grounds to suspect that the "lawful activity" is simply a pretext for suspending the right of access. This contrasts noticeably with the right of appeal afforded to landowners in Subsection 14 (5).
The Criminalisation of Access - The Strange Logic of Sections 5 and 15
The proposed new criminal offence, set out in Section 15, must be removed. It is unnecessary, against the tradition of access in Scotland and against the spirit of the intended legislation. Is the simple act of taking access, linked to some alleged activity that may not even be a crime (such as picking berries) to be a new criminal activity? Landowners can already call on the police to deal with incidents on their land, and the full range of existing criminal law is available to evict or arrest those who are breaching those laws. The police can already arrest those involved in
burglary or poaching without the need for extra clauses in access legislation.
The list of types of conduct contained in Subsection 5 (4) includes conduct so loosely defined as to include conduct that is essentially harmless, and which has not previously led to commission of an offence. Subparagraph (c)
specifies (as conduct to which a right of access does not extend), "threatening, abusing or insulting (whether by words or behaviour) the owner of the land or anyone else lawfully present there." In Scots criminal law, threatening or abusive behaviour, constituted by "mere words" cannot amount to the crime of assault although it might amount to breach of the peace. Our interpretation of this poorly drafted section is that the actual "crime" that is being proposed is ostensibly a refusal to leave land, after being requested to do so, and it is the list of activities in Section 5 that provide the basis for such a request. The behaviour in subparagraph (c) is unusual in that it depends on a small discrete group of persons as its victims. Such behaviour, might, depending on its degree, constitute either the separate crime of uttering threats or a breach of the peace. The context of such behaviour would be important as well, when the fiscal was deciding whether to prosecute or not (for example, abusive behaviour in the context of an argument between two people who were not being violent to each other or causing a public disturbance might not be thought to be worth
prosecuting in the public interest). Such behaviour is therefore covered by existing common law crimes and does not need separate criminalisation.
Insulting someone is not, however, a crime under the law of Scotland, although the victim could sue for defamation. It therefore seems contrary to fairness that insulting (whatever that means) a member of a particularly small class of people (landmanagers or those lawfully on the land) might have as its result a conviction for an offence, whereas insulting your colleague or neighbour or indeed anyone else, does not have such a result.
The MCofS is greatly concerned that the Scottish Executive should seek to protect one party in this way, whilst not protecting the other. We have received several reports in recent years of hillwalkers and climbers being verbally and physically threatened by landowners and managers. To offer a form of biased protection to the aggressor in these incidents would place the innocent visitor in an unfair position whereby he cannot answer back to his attacker for fear of becoming a criminal. In any case, one man's insult is another man's well-honed riposte and the definition of an "insult" must depend on individual sensitivities or quickness to offence. How is a policeman or ranger to tell if there really has been an insult, and who is to prevent a land manager from fabricating an insult (perhaps in the context
of an argument with recreationalists) simply in order to set Section 15 in motion? There seems to be a great deal of scope here for abuse of the legislation by landowners. The lack of any defence to Section 15 means that the prospect of being found guilty of an offence will result in there being little opposition to such a request to leave land. The whole conceptual framework behind Sections 5 and 15 is so offensive to logic and liberty that they would be better omitted altogether.
Indeed, we wonder whether it is necessary to specify any conduct that is excluded from the right of access. If a person is committing a statutory offence or common law crime, regardless of whether it is listed in the Code at all, then that person should be charged of the crime. It is immaterial to the likelihood of convicting that person that he was or was not exercising the right of access. It has never been thought necessary to specifically suspend a person's right to be on a public right of way because they are committing an offence. If, for example, there really is threatening behaviour or abuse by a person exercising access, the land manager could call the police who could arrest, and charge under the usual criminal law, without having to concern themselves about the person's access rights (which are not relevant to the commission of a crime). The commission of the crime in itself would be sufficient to justify asking the
person to leave the land without deciding whether or not his conduct was such that the right of access did not extend to cover it. Put another way, it would never be a defence to any of the offences in Annex 1 that a person was exercising their statutory right of access, so on that view the whole of Section 5 is unnecessary.
There is some recognition of this in Section 5 (1) which provides that access rights do not extend to "doing anything which is an offence". Since numerous statutory offences and criminal law crimes (apart from insult) as listed in Annex 1 of the Code already cover all the forms of obnoxious conduct listed in Section 5 (4) then the section is redundant.
If there has to be a statutory statement of the position then it would be just as simple to say that the commission of an offence under the law of Scotland may result in a person being asked to leave the land and that refusal to do so will also amount to the commission of an offence. It would be a defence to that statutory offence that the person had not in fact committed an offence under the law of Scotland.
Another notable aspect of this section, by comparison with the landowner's right of appeal in Section 14, is that there is no appeal where a person has been unfairly asked to leave land, and does so, in order not to commit an offence. Such a person, who has been unfairly expelled, should be able to complain and seek compensation.
Another example of the poor drafting of this section, and the criminalisation of hitherto harmless activities, is the activity described in Subsection 5 (4) (e), "taking away anything in or on the land." We are left guessing at what this is aimed at. Taking away the property of the landowner is theft and therefore a crime anyway, and taking away wild plants, birds or animals would be covered by the Wildlife and Countryside Act.
We have considered whether this would cover such things as wild brambles or mushrooms. The position as regards ownership of what might be termed "wild" crops is complicated and depends on the legal doctrine of accession of
fruits - meaning that plants accede to the soil wherein they are rooted and from which they grow nourishment. Such wild crops are therefore the property of the landowner. However, generations of people have considered themselves and have been considered free to pick berries and mushrooms (no doubt, by reason of the tolerance of the landowner) and yet, this unnecessarily wide wording could, in theory, result in people who did so being asked to leave land, and if they refused to leave land, being guilty of an offence. On the face of it, the wording would cover such things as pebbles, pearls and shells, (which cannot be owned). It is also the case that if property is abandoned, (unless it is treasure trove) the taker becomes the owner. Why should a person lawfully exercising the right of access not take away abandoned property or shells or pebbles? Subsection (4) (e) would so prevent him, and is completely at odds with existing law.
It seems that the imprecise wording simply does not take into account the various well-established categories of corporeal moveable property under Scots Law. It may be, of course, that no landowner will know or care if brambles or mushrooms are picked, but we believe that, yet again, this section contains the means to restrict recreational users, where neither restrictions nor the need for them ever existed before.
Mis-interpretation of the Law on Wild Camping
The comment about wild camping in paragraph 3.19 (page 18) of the draft Bill is wholly inaccurate and must be corrected. The Trespass (Scotland) Act 1865 does not refer to wild camping. It refers to encampment, which was the word used at that time to refer to squatting, or the setting up of a substantial camp for an extended period, rather than pitching a small backpack tent for one or two nights for purely recreational purposes. Thousands of law-abiding people enjoy this life enhancing experience each year and do not expect to be criminalised for it.
Wild camping is an integral part of making a multi-day journey away from roads and other facilities. There are no official campsites in such remote areas, so nobody is depriving a business of income when they are nowhere near a campsite and not in search of the kind of recreational experience provided by a formal campsite. The MCofS produced a "Wild Camping - Code of Good Practice" leaflet in 1996; a publication that we believe fits with the Access Forum idea of developing a cascade of advisory codes flowing from the Country Code and Scottish Outdoor Access Code.
The point about forest fires is a strange one, as we know of no instances where people camping wild have caused fires, in woodland or elsewhere. We do, however, differentiate between wild camping and roadside camping, which has been the cause of numerous problems with fire and pollution. We therefore commend the draft Code's statements about wild camping in paragraphs 2.5 and 5.2. The contradicting statements between the draft Code and draft Bill are further evidence of the lack of time and thought put into the writing of the draft Bill.
Section 10: Night-Time Access.
We are concerned that this section would empower local authorities to vary or cancel access rights agreed by the Scottish Parliament. We have seen recently how some local authorities have misapplied the processes for managing the foot and mouth crisis and have appeared less than even-handed between land management interests and the rest of the population within or outwith their area. In particular, we are worried about misuse of Subsection 10 (1) (d) resulting in a night-time curfew. Night access is vital to the complete enjoyment of the Scottish Countryside, whether for enjoyment of the midsummer experience or for safe completion of a winter climb.
Quite apart from the simple Human Rights issue, any form of night-time curfew would have a serious safety implication. Anyone who rushed in an attempt to leave a mountain before the curfew would be in danger of having, or causing, an accident. Many winter days in the mountains take over 12 hours to complete. Such days are easily achieved by starting two or three hours before dawn, completing the hardest part of a walk or climb in daylight, and then completing the descent after dusk. Tens of thousands of people do this, and they are not criminals and do not expect to be criminalised for taking healthy outdoor recreation.
A further argument against any form of night-time curfew is that real criminals would see the deserted countryside as the perfect opportunity to move about unseen and unhindered. The presence of people, or at least the possible presence, is a big deterrent against rural crime.
Section 8: Extreme Weather
The reference, in Section 8, to extreme weather is an extremely dangerous suggestion and must be removed. Such a clause would lead to immense pressure on local authorities to close mountains whenever there was a high avalanche risk, or even just a forecast of typical Scottish winter weather. The more unscrupulous landowners would seek to exploit this clause and would repeatedly harass their local authorities for access closures.
In terms of mountaineering, it is mountaineers who should take decisions about conditions and risks. Those involved in mountain training provide the skills needed to make such assessments. An important part of that training is actually experiencing the kind of harsh conditions that can be encountered. It is particularly vital that mountain leadership courses train instructors and guides in the skills of mountain travel and navigation in the most severe conditions so that those people are experienced in such conditions before leading groups into areas where that kind of weather can develop.
Encountering and coping with difficult conditions continually leads to the development of skills for all those involved in mountaineering activities. Such experience is crucial when an individual or group suddenly find themselves in worsening weather conditions. That is the nature of Scottish mountaineering. We live in a country with a harsh climate and an ability to enjoy bad weather is part of the outdoor experience for many people. Indeed, the regular experience of harsh weather is what makes so many Scottish mountaineers so successful on expeditions to the high and remote parts of the world. Brought up on mountains that are only 3,000 and 4,000 feet high, mountaineers from Scotland are able to demonstrate the same levels of competence as North Americans who have trained on 14,000-foot mountains. If an attempt was made to deny the gaining of that experience at home there would be more accidents when people were suddenly caught out in a storm, or when we experienced bad weather in some other country of the world. In any case, high winds, snow, sleet, high risk of avalanche and sub zero temperatures are not extreme weather in Scotland. That is the prevailing weather in our exposed maritime climate.
It is essential to understand that mountaineering is a risk activity and will always remain so. The challenge of the hills is what attracts so many people to the activity. Mountaineering has developed an ethos of self-reliance, which has led to the evolution of a highly skilled rescue service consisting of active mountaineers. We believe that the current system of co-operation between volunteer teams, the police and military provides a service, at little cost to the public purse, which would be hard to improve. The kind of regulation of our activities that are being proposed in this clause would, in our view, lead to less experienced rescue team members and an increase in the number of accidents. That is a combination of factors that we would rather not see.
The draft Bill suggests a minimum time period for closure of 14 days. Even when there is a high risk of fire or avalanche, the changeable nature of the Scottish climate can lead to a significant lowering of that risk within a day or two. The imposition of a minimum time period makes an already offensive clause appear even more out of touch with reality.
The intention behind the clause may be to close areas during periods of high fire risk, but even in this situation the public are likely to respect a reasonable request to stay away from an area that is at great risk. The Scottish Outdoor Access Code should explain the procedures for recommending such emergency measures, rather than resorting to the legal solution of including a clause in the Bill, which is then open to varying interpretations and regular abuse.
Section 16: Exclusion Orders
There is no justification for exclusion unless as part of a sentence after being found guilty of a criminal offence or as a result of a civil action. Whilst there may be occasions where a local authority would wish to exclude persons who are persistently anti-social in the exercise of access, to have the power to do so without first having to justify the exercise of that power by informing the person why it was intended to exercise the power and give the person an opportunity of answering the charges is essentially contrary to natural justice.
We believe this could be an issue under Human Rights legislation, especially as no satisfactory appeal mechanism is provided for. It is clear from the terms of Subsection 16 (4) that the person excluded would not know about the order until after it had been made.
This section is taken from the Civic Government (Scotland) Act 1982, where it applied to public buildings such as libraries and swimming pools. To extend this type of law to the whole of the countryside is inappropriate,
and we have to say that we are surprised that the Scottish Executive considered such a measure.
- General Concerns
In this section of our response we will discuss the other concerns that we have with this draft Bill. These points will be considered in the order in which they appear in the draft Bill.
Section 4: Land Over Which Access Rights Not Exercisable
Curtilage
There is a reasonable concern that Subsection (1) (b) (ii) will encourage the widespread use of notices purporting to exclude public access wherever there is a dwelling with a large area of surrounding land. Notices wrongly purporting to impose foot and mouth disease restrictions indicate the scope for mischief here.
In relation to paragraph (i), this seems to be directed at preventing the public coming into the locality of any building even if not a dwelling house. Whilst there could be reasonable concern that operational buildings such as cowsheds and industrial buildings should be given a wide berth, the same does not apply to the many remote rural buildings that are uninhabited and which often have footpaths running through their curtilage.
Royal Estates
Subsection 4 (1) (d) excludes land held by the Queen in Her private capacity. We do not think it is appropriate for this land to be excluded from access rights. It could lead to the situation where access on the Balmoral Estate was available on the Capel Mounth, a public right of way, but not to the summit or cliffs of Lochnagar. We do not believe that the current situation of open access to this land causes any difficulty for the privacy, safety, or protection of the Royal Family.
Sports Grounds
The discussion in the Access Forum that led to Subsections 4 (1) (e) (i) and (ii) were concerned with protecting special sports surfaces, such as Astroturf football pitches and outdoor tennis courts. The way it has now been drafted leaves the possibility for several alarming interpretations. If there is to be a general right of access to land in Scotland, then large tracts of land such as golf courses cannot expect to be outwith the area included within that right. Whilst it is common sense and decency to avoid walking on tees and greens, we do not accept the argument that the rest of the land devoted to golf courses should be excluded from the right. Some important walking routes, that are not rights of way, run across the middle or along the edges of golf courses, and it is important that these routes are protected for the future. This is especially the case with coastal paths that depend on cliff top routes, and where the cliff top is also part of a golf course.
Given the current wording of this section of the draft Bill, it is not inconceivable that some landowners would claim that deer stalking and grouse shooting are sports and the hills and mountains on which these activities take place are therefore sports grounds. We do not believe that a court would uphold that view.
Section 6: Adjustment of Land and Conduct Excluded from Access Rights
A clause allowing Ministers to modify Sections 4 and 5 is highly suspicious and raises fears that this could be a warrant to alter the legislation at some stage in the future without any form of public consultation. Given that we argue strongly that Sections 4 and 5 must be removed, then there is no remaining reason to keep Section 6 either.
Section 10: Power to Exempt Land and Particular Conduct
There is no effective appeal mechanism against the decision of the local authority. In some cases it might be possible to apply for the judicial review of the particular administrative act of the Authority to Court of Session, which as a procedure would not be practical or cost effective in the majority of cases.
The question must also be asked as to how potential exemption applications would be dealt with in relation to local authority land, as any exclusion in this case would be open to challenge on the legal basis that it is against the rules of natural justice as the Authority would be making a decision on their own account.
Section 14: Prohibition Signs, Obstructions, Dangerous Impediments
We believe that the following amendments should be made to the appropriate clauses within Section 14.
14 (1) After the words 'The owner of land' insert the words 'and his
managers'.
14 (1) Insert a new clause (e) 'assault, bully, or in any way intimidate individuals or groups of people seeking to exercise their access rights', and make the current clause (e) into clause (f).
14 (1) (b) After the word 'fence' insert the words 'locked gate', and after the word 'wall' insert the words 'or other physical barrier'.
14 (2) Replace the word 'may' with the word 'will'.
14 (3) After the word 'wall' insert the words 'locked gates'.
14 (3) After the word 'injure' insert the words 'or otherwise prevent'.
14 (3) Replace the word 'may' with the word 'will'.
14 (3) After the word 'injury' add the words 'and prevention of access'.
14 (4) Replace the word 'may' with the word 'will'.
The use of intimidatory signs must be outlawed by this legislation. For far too many years, those who walk in the Scottish mountains have been intimidated by signs that warn of "Danger - High Velocity Rifles". Such signs stay up for the entire stalking season, and in many cases, the whole year. Leaving signs like this in place when stalking is not taking place at the time is providing inaccurate and misleading advice, and the signs are more about discouraging people, than they are about warning of a danger. If guns are being used in such a way that lives are being put at risk, then we would argue that the people handling those guns are not sufficiently responsible to hold the necessary licence.
Those who put out such signs do so on the basis that some people are put off and will turn back, but they are also well aware that the majority of people ignore them. Landmanagers should, therefore, be under no illusion that the signs lead to them having exclusive use of the mountains. The kind of communication that mountaineers find useful, and which they willingly comply with, is information provided on, or close to, the day of their activity. The messages that are respected are from the Hillphones scheme, a polite conversation with a stalker, or a sign erected on the day with the date clearly shown. These are the methods the Access Forum was encouraging, and which could be encouraged further through the Scottish Outdoor Access Code. We question why the landowner has a right of appeal in Subsection 14 (5) to Ministers. Why is there a right of appeal to Ministers and not to the courts? The Minister is not an impartial judge, and could be subject to other pressures. This appeal procedure stands in stark contrast to the lack of appeal provisions attached to the exclusion order provisions of Section 16.
Section 17: General Power to Uphold Access Rights
We would like to see local authorities being given duties to protect the new right of responsible access. An obvious way of providing that duty is to change the word "may" in Subsection 17 (1) to "must".
Section 18: Measures for Safety, Protection, Guidance and Assistance
Subsection (5) must be deleted. A landowner may well attempt to reduce or frustrate use of a path by refusing to allow a sign or stile under this subsection, and on no account should he be allowed to do so. It is abhorrent that Section 32 would extend this to existing rights of way, where under the 1967 Act local authorities do not need consent; and indeed it is a matter for concern that such a section was ever inserted in the draft Bill.
Section 19: Acquisition by Local Authority of Land to Enable or Facilitate Exercise of Access Rights
This is a normal and necessary fall-back provision, which we support.
Section 20: Payment for Access
We are particularly concerned about the possibilities for abuse in Subsection 20 (2) as respects 'payment', as this might be interpreted as payment for grant of access. Under the law of compulsory purchase following the Lands Clauses Consolidation (Scotland) Act 1845, payment must be for loss suffered in the public interest, not for any public benefit that may accrue, and it appears to be the general sense of the draft Bill that landowners suffer no loss in view of existing de facto access in Scotland. Payment for provision of facilities at the owner's expense is another matter, but that would require close specification.
Sections 17 - 24: Footpath Management
The MCofS have a stated 'Footpaths and Erosion Policy' and we are founder members and supporters of the British Upland Footpath Trust. We are much concerned with the conservation of our fragile mountain and wild land
heritage, and in particular with the challenge of finding ways of enabling people to venture into the hills without spoiling them, primarily through control of upland path erosion.
Restoration of some of the most badly eroded hill paths has been undertaken haphazardly and to varying standards over the years without apparent national planning guidance or follow up maintenance, and we hoped that the access legislation would provide the opportunity to rectify this. As drafted, it completely fails to do so, and we ask for substantial amendment on that account. The Access Forum proposals seemed to go some way towards this, assuming that the 'core paths' which local authorities were to have a duty to manage included the popular hill paths; but the draft Bill offers no core paths other than existing rights of way (virtually non-existent in the hills) and additions created individually by cumbersome procedures lifted from the outdated 1967 Act. Nor is there any duty to maintain anything more than a list.
Section 24: Local Authority Duty to Compile and Maintain a List of Core Paths
Section 24 of the draft Bill gives local authorities a duty to compile and maintain a list of core paths within their area. This duty needs to go much further. A duty to maintain the actual paths is noticeably missing. A simple list on a computer database or in a filing cabinet would achieve the meaning of the duty, because they would have compiled and be maintaining a list. This legislation should be about making a difference on the ground, rather than ensuring that office procedures are adhered to. The MCofS wants to see a duty on local authorities to maintain and manage path networks, including drainage work and the removal of unnatural and man-made barriers.
Section 25: Rangers
The important role of countryside rangers in facilitating access should focus on education and guidance, rather than policing and ensuring compliance. The central theme of the Access Forum's advice was for there to be a programme of education. Like other members of the Access Forum, the MCofS believe that Countryside Rangers are ideally qualified to play a key role in providing 'on-the-ground' education. The current wording of the draft Bill suggests that the Scottish Executive is intent on creating new criminals and empowering rangers to carry out police type duties.
A long-term consequence of altering the role of countryside rangers would be the effect that it would have on the type of individuals entering the profession. The skills and personal traits of the rangering profession ensure that those involved in this work are skilled in environmental subjects and enjoy working with people, especially children. A change to a policing role would encourage those with a more authoritarian attitude to enter the profession, and in our opinion this would be a disaster for the Scottish countryside.
Section 26: Local Access Forums
The commentary that precedes the draft Bill, at 3.10, states that, "If it is considered that a land manager is abusing the concession then recourse will be through the Local Access Forum and the local authority that will have powers to remove the constraint". The wording of the draft Bill, however, is incredibly weak. The Local Access Forum could offer to give assistance and advise the local authority, but a landowner only needs to argue that he has continuous management operations that are incompatible with access and the Local Access Forum, and the local authority, would be powerless to take any action. Decisions on when to constrain the right of access should not be left in the first instance to the land manager, as the statement at 3.10 currently suggests.
Section 27: Register of Land in Respect of Which Access Rights are not Exercisable
This section should be removed. It is unworkable and an unnecessary burden to give local authorities.
- Additional Points
Economic Implications of the Draft Bill
We urge the Scottish Executive to consider the economic implications of the draft Bill, and its costs in terms of policing, of time wasted by local authorities dealing with spurious complaints from landowners, and of tourism losses.
Lessons from the Recent Foot and Mouth Crisis
There is a strange irony that the draft Land Reform Bill was launched on the same day as the foot and mouth crisis began. This crisis has led to numerous aggressively imposed blanket bans on access. The current widespread access closures are contrary to Scottish Executive advice, and are a telling example of how Section 9 would be widely and regularly abused by farmers and landowners unsympathetic to access and/or nature conservation.
The combination of the foot and mouth crisis and the strong feelings that have been released by this draft Bill have led to a number of unpleasant incidents in recent weeks. The MCofS has received reports of walkers finding their car windscreens smashed when they returned from a day in the hills, and of estate workers shouting and swearing at every walker on a particular mountain. These incidents have been in late May and June, when Scottish Executive advice to landowners has been to allow free access as before. We fear that these kinds of attacks will increase in number and severity if landowners are provided with the legal right to remove at will other peoples' rights.
Another impact that foot and mouth has had on access has been to encourage those who are less confident, or who simply fear confrontation, to holiday abroad instead of in Scotland.
We hoped that the Scottish Executive would have seen the benefit of encouraging a more friendly countryside where those less able or confident could find peace and enjoyment. As well as providing benefits to recreationalists, a balanced package of measures should also provide better support for landowners who wish to seek local authority assistance in managing access on their land. This legislation should be an opportunity to encourage all of these benefits, but instead the draft Bill rewards the strong and leaves the rest to fend for themselves. There is no protection for those walkers who are verbally attacked and very little in the way of support for landowners wanting to provide decent paths in order to manage access on their land.
As one commentator said: "When the paths are closed, even the pavements are empty". Almost every UK tourism business has been affected during the foot and mouth crisis, and the impact has gone well beyond the obvious rural
businesses that one would expect. We now know that the tourism industry is worth somewhere in the region of 25 times more to the UK economy than the agricultural industry. That is not meant to belittle the importance of farming, but the value of tourism must now be recognised and given greater protection in the future.
Conservation Concerns
A new section should provide, where Scottish Natural Heritage or Historic Scotland consider it is appropriate, for the conservation of the natural or cultural heritage, for local authorities, Scottish Natural Heritage or Historic Scotland to have a duty to take action, under the provisions of this, and other, legislation, to prevent disturbance or damage to the natural or cultural heritage.
This section should also include a power for local authorities, Scottish Natural Heritage or Historic Scotland to enter land to erect signs to take other management measures to protect the natural or cultural heritage. As a check against local authorities, Scottish Natural Heritage or Historic Scotland being pressed into unnecessary action for 'spurious' conservation reasons, there should be a legal process to object to and appeal against such measures (akin to Section 29 Nature Conservation Orders).
This suggestion is based on the following principles:
- It provides a flexible 'hook' - i.e., a framework to ensure conservation action where necessary and uses a variety of (existing or proposed) mechanisms* to achieve this;
- The duty/power rests with statutory agencies, rather than with individual landowners;
- It is therefore subject to public scrutiny (and, of course, legal challenge);
- It should remove the risk of 'spurious' conservation claims by irresponsible owners; and
- It provides legal surety as required by European law.
* Examples of such mechanisms include bye-laws, Nature Conservation Orders, Special Nature Conservation Orders, Areas of Special Protection, management schemes agreed with local authorities, etc.
Local access forums should include voluntary conservation representatives.
Along with other member bodies of Scottish Environment LINK, the MCofS suggests that the following wording should form a new clause in the Bill relating to conservation.
- It shall be the duty of Scottish Natural Heritage and HistoricScotland to advise local authorities where management action may be necessary for the reason of securing the protection of the natural and cultural heritage.
- It shall be the duty of local authorities and Scottish Natural Heritage and Historic Scotland, where Scottish Natural Heritage and Historic Scotland provide advice under Subsection (1), to take action using powers under this and other legislation.
- Scottish Natural Heritage, Historic Scotland or local authorities shall have power to enter land to erect signs or take other management measures in pursuance of their duty under Subsection (2).
Liability
Paragraph 3.12 in the draft Scottish Outdoor Access Code states that, "You should exercise the right of access at your own risk and take responsibility for your own actions. You should also remember that informal, open-air recreation activities do carry a degree of risk and that the outdoors cannot and should not be made risk free". We fully endorse these sentences.
We welcome this kind of statement in the Code, as we believe that a strong message of being responsible for your own actions should be given out to people. We remain to be convinced, however, that a section in the Bill could reduce the possibility of spurious claims being made, but we recognise that this is an important issue and are prepared to discuss it further.
Applying a Set of Rules for the Whole of Scotland
We are very much aware that this legislation is an attempt to write a set of rules that will apply to the whole of Scotland. In other words, this legislation will be relevant to the uplands and lowlands, and to the urban fringe and wild land areas. Our concern is that in attempting to solve lowland or urban fringe problems, the legislation will adversely affect recreation in the uplands and wild land areas of Scotland. For instance, we empathise with the problems of drug abuse and uncontrolled dogs on urban fringe farmland. However, in attempting to introduce sanctions to ameliorate this kind of problem there must be great care taken to ensure that unnecessary, unenforceable and draconian restrictions are not applied to more remote countryside, or for that matter, that owners of more remote land are not able to attempt to apply a clause that was intended for use in a different type of countryside.
Reliance on Sections from the Countryside (Scotland) Act 1967
The draft Bill repeats many parts of the Countryside (Scotland) Act 1967, which are now considered outdated and unworkable. Sections 17, 20, 21, 22 and 23 of the draft Bill make substantial use of clauses taken straight from the 1967 Act. We have to ask why these sections have been copied in this way, rather than finding out where that Act failed and attempting to achieve the current government's objectives by introducing new legislation that is more likely to succeed.
- The Draft Scottish Outdoor Access Code
The Status of The Scottish Outdoor Access Code
Subsection 2 (2) (b) states that: a person loses their access rights if they are contravening a provision of the Access Code. Given that the draft Code is a mix of the informative, advisory and mandatory, it is not clear what is intended, since the most minor indiscretion could then be used to remove access rights. We note also that there are no corresponding sanctions against a landowner or public body that contravenes the Access Code.
The Access Code is not intended to be a legal statute. But subsection 2 (2) (b) is a backdoor means of turning it into one.
The Content of The Scottish Outdoor Access Code
We believe that the Code should contain the informative, advisory and mandatory information mentioned above, but a distinction needs to be made among them. The use of colour coding, for example, could be a way of making clear to the reader what kind of information is on a given page.
Section 7 sets out the details of ownership and responsibility of the Scottish Outdoor Access Code, and places a duty on Scottish Natural Heritage to draw up, issue and keep it under review and modify it from time to time. We would like to see more emphasis on there being ongoing consultation in this process. Consultation, through the normal working of the Access Forum, helped us to arrive at the current draft Code. That tri-partite forum achieved a reasonably balanced and fair draft document. The draft Code is not perfect, but Scottish Natural Heritage working alone would probably have drawn up a much poorer document. The National Access Forum is the ideal partner for Scottish Natural Heritage when making future modifications to the Code. Unfortunately, the departure of the current draft Bill from the
Access Forum's recommendations has led to a breakdown in the functioning of the Access Forum and it is by no means certain that the Forum will re-convene. If the Access Forum does meet again, it should liaise with Scottish Natural Heritage, but if it does not continue there should be some other method whereby Scottish Natural Heritage consults with the representatives of recreational bodies, land managing bodies and other public agencies in order to agree modifications to the Scottish Outdoor Access Code. As an organisation with a strong interest in the future of this Code, we would not be happy for the responsibility of its future management to lie entirely in the hands of Scottish Natural Heritage.
We would like to see the current inconsistencies between the draft Bill and Code resolved.
- Conclusion
The MCofS is convinced that numerous parts of the draft Bill would be unenforceable if they were included in draft legislation. We firmly believe that the Bill should be as simple as possible, legalising what has been enjoyed for centuries: namely, a responsible right of access.
The proposed legislation does not reflect the consensus of the Access Forum or Scottish Natural Heritage's advice to government and is indeed at odds with the co-operative approach that was envisaged by these bodies. It draws
up battle lines, polarises recreational users and landowners, and in its present form will result in hostilities on the ground and in the courts.
