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The Underlying Principles of the Bill
It is important that this legislation does not undermine the existing right and tradition of access to the Scottish countryside. The underlying principle of this legislation is to create more access opportunities. Any pressure to reduce access opportunities should therefore be resisted by avoiding or removing any measures that diminish existing access traditions.
Many of the problems associated with access have been exacerbated by the lack of resources and powers available to local authorities for managing access. With the increasing recognition of the health benefits of all forms of outdoor recreation, combined with the importance of economic benefits, there is a need for local authorities to be given the power to create, manage and maintain paths. Another basic principle of this legislation is that local authorities should be provided with the means of delivering access facilities, upholding the right of access and providing the public with increased access opportunities in their area.
In view of these broad principles we do have a number of concerns about the current version of the Bill, which we will describe below.
The Long Title
The long title of the draft Bill stated that the Land Reform (Scotland) Act would be: "An Act of the Scottish Parliament to confer public rights of access to land for recreational and other purposes". In the Bill (as introduced), the long title has gained a reference to regulation of the right. The Explanatory Notes to the Bill do not explain this change, nor do the changes to the Bill lead one to see a justification for such a change. In our view, the words "confer and regulate" do not convey the underlying principles of this legislation, because they threaten to undermine the right that is being enshrined. Alternative wording such as "confirm and manage" would be more appropriate.
Ministerial Powers
We are concerned about the proposals to give Ministers very substantial powers in section 4 to modify sections 2 and 3 by order. Further powers of a similar nature are granted under section 8 to modify sections 6 and 7. There is a need for these powers to be tempered by the requirement for further public consultation and scrutiny by the democratic parliamentary process. This qualification was included in the previous draft but appears to have been dropped.
Specific Concerns
The MCofS has considerable concerns about much of the detail in this version of the Bill and believe that a great deal of work will be required in the forthcoming committee stages to convert it into workable legislation that meets the general principles of the Bill.
Local Authority Functions
Chapter 5, which deals with "Local Authority Functions", is an example of the requirement for more attention to detail. Unlike the draft Bill, this version does provide local authorities with duties to develop a core path plan, but it fails to describe how the plan would become reality on the ground.
Although this aspect of the access legislation is primarily concerned with low-level access, we, as a Mountaineering Council, believe that it is vital to our interests. A number of popular mountain paths, such as the main walkers' route on Ben Nevis, are likely to be included in core path networks. Furthermore, providing low-level routes in mountainous areas will broaden the recreational opportunities spectrum, and we wish to see an efficient system in which local authority resources are maximised, and used to develop and manage access opportunities for all forms of outdoor recreation.
The proposed local authority powers in section 11, in relation to exempting particular land and conduct, are too wide-ranging and open to abuse. Local authorities would be under continuous pressure from landowners to close off land. This happened during the foot and mouth crisis and a number of local authorities succumbed to the pressure with little consideration for the value of the access rights that we wished to see protected. Section 11 should be removed, or at least redrafted to be equivalent to the powers given to SNH in section 26.
We are also concerned that the proposed local authority powers to create byelaws in section 12 could be used to undermine the basic purpose of enabling access, and could result in an unmanageable mosaic of differing regulations. Any such powers need to be consistent with a duty to protect and enhance access, and to be in line with clear Executive guidance.
Path Maintenance
The issue of path management, including maintenance, must be addressed by this legislation. In the past, expenditure for path management has been spasmodic and almost entirely restricted to capital work with very little attempt at maintaining the investment on the ground. This legislation provides an opportunity to address the fundamental management of the basic resource for access. Along with a variety of other bodies the MCofS argues that paths are also the basic resource for the tourism industry and the promotion of good health. We believe these are strong arguments for proper management of the wider path network.
Land Set Out for Recreational Purposes
We believe that subsection 6(f)(ii) is open to very broad interpretation indeed, and this could result in future conflicts if the wording is not clarified. Exempting land that has been developed or set out for a particular recreational purpose while in use for that purpose is acceptable when considering a football or cricket pitch, but if extended to a Highland sporting estate, for example, would be wholly unworkable. Estate owners wishing to close areas of mountain and moorland during the deer stalking and grouse shooting seasons could hold up this clause as a justification for blanket bans on access. Our previous experience of working together with land managers has demonstrated that sporting and other recreational pursuits can take place on the same mountain at the same time with conflict being reduced by improved communications.
Land Held by the Queen in Her Private Capacity
Subsection 6(e) would effectively give the estate managers the right to close access to the whole of the Balmoral estate, which includes five Munros (Scottish mountains over 3,000 feet), including Lochnagar, and some of the most important summer and winter climbing areas in Britain. We do not think that such a wide-ranging measure is necessary for the protection of the Royal family.
Curtilage and Farmyards
The issue of curtilage and farmyards in subsection 6(b)(i) still requires a great deal of thought if a workable solution is to be found. The Bill has rightly avoided resorting to the use of distances, as this would introduce a rigid system that would not work in reality. Access through farmyards is a common occurrence and in many cases offers the most logical route onto open ground beyond. A right of access through farmyards is, in our view, an essential part of an access system that aims to increase access opportunities. Having said that, we believe that local authorities should be enabled to work with farmers and landowners to manage access through farmyards, and to provide alternative routes where busy farmyards can be by-passed. We believe that the issue of responsibility whilst in farmyards should be promoted, but the right to walk through a farmyard should be a part of this legislation.
Hours of Darkness
The reference in subsection 11(1)(d) to local authorities having the power to exempt the right of access during the hours of darkness represents a significant threat to access. This clause would offer unwarranted potential for landowners who are unsympathetic to access and nature conservation to lobby their local authority officers and councillors for a curfew on their land. Whatever the original aim of this clause, there is tremendous potential for it to be abused and employed in other situations. We feel that this clause would not pass any test of reasonableness, because it would invariably affect those for whom a curfew was not intended.
Commercial and Business Activities
The reference to commercial and business activities in subsection 9(2)(a) is an unwelcome introduction to this version of the Bill. This issue was discussed at some length in the Access Forum where it was generally accepted that drawing a line between the many diverse activities was an impossible task. We also feel that it would be unworkable, open to abuse and potentially damaging to hundreds of businesses, many of which are key employers in rural areas.
Along with other recreation bodies on the Access Forum, we argued for the Scottish Outdoor Access Code to set out the responsibilities on any group leader or organiser. As the complexity of an activity increases, or the sensitivity of the time of year changes, or the requirement for facilities arises, then the need to consult with, or seek permission from the landowner changes accordingly. We are keen to see the responsibilities of organisers being spelt out clearly in the Code, but do not see why being commercial per se should instantly place an individual outwith the right.
However this clause is defined, and we note that there is little attempt to define it at this stage, there would be borderline cases to challenge that definition. The relationship between individuals taking access is of no legitimate concern to the landowner, because s/he has no locus to profit from their presence. "Commercial" groups are not "exploiting" private land; they are exploiting their own professional or technical abilities. Whether the group leader is a mountain guide or a child minder, they owe no debt to a landowner for such abilities. Given that their relationship with clients is governed by the private law of contract it is none of the landowner's business to enquire as to their purpose or motives so long as they are exercising their right of access responsibly under the law.
Scottish Outdoor Access Code
The timing of the release of the latest version of the draft Scottish Outdoor Access Code has been particularly unsatisfactory, being released two days before the deadline for this written evidence. We have not had sufficient time to read the Code and to build its content into this response. A further difficulty that we wish to express is that the redrafting of this latest version of the Code has taken place between SNH and the Scottish Executive without any input or consultation with the MCofS or other members of the Access Forum. Indeed, the Access Forum developed the original version of the Code, but with the Forum being non-operational since February, as a result of the National Farmers' Union of Scotland's decision to leave, the vital element of open and joint working on the Code has been lost.
The change in ownership of the Code is regrettable, because the Code is a crucial part of this legislative package, and the consequence is that we have not been able to build our thoughts on this draft Code into our written evidence. We are unable, therefore, to comment properly on sections of the Bill that refer to the Code.
We do, however, believe that large parts of sections 6, 7 and 9 should be dealt with in the Code rather than the Bill. The Code would be a more suitable document for conveying detailed information about specific issues such as crops, signs, berry picking, collecting rocks and so on.
Wild Camping
We strongly support the proposal in schedule 2 to amend section 3 of the Trespass (Scotland) Act. This will ensure that wild camping, which is a rewarding and integral element of many outdoor activities, will be properly protected and no longer open to differing legal interpretations. The MCofS's interpretation of the reference to encampment in the 1865 Act is that it was aimed at preventing the setting up of a home, and has no effect on the temporary pitching of a tent as part of a modern-day recreational journey. Many law-abiding citizens will welcome the clarification that this amendment will provide.
The Requirement for Legislation Strong Enough to Achieve its Purpose
It is vital this process results in legislation that is workable, understandable and sufficiently robust to achieve its intended purpose. The legislation needs to be workable for local authorities, which, as we have already said, need to be empowered to deliver on the ground. It also needs to be understandable so that guides, instructors and teachers, instead of being placed outwith the right, should be encouraged and supported in delivering the educational messages about the responsible right. The legislation also needs to be sufficiently strong to resolve intractable access problems, such as locked gates, which should be addressed in subsection 14(1)(b).
Part 2 of the Bill
Although our evidence is mainly about Part 1 of the Bill, we do have one comment relating to Part 2. We believe that Part 2 of the Bill needs amending to extend the powers of intervention in the land market from simply community interests to wider environmental and cultural interests.
Working With the Wider Environmental and Recreational Sector
The MCofS is a member of the main environmental and recreational networks that have also submitted evidence to this Bill. We are a member of Scottish Environment LINK, Scottish Sports Association and Scottish Countryside Access Network, the three networks that jointly sponsored the Outdoor Access for All (PE415) petition. We believe that the response to this petition (over 15,000 signatures from Scotland, rest of the UK and overseas), combined with the huge response to the draft Land Reform Bill written consultation, is a demonstration of the strength of public feeling on this issue.
Oral Evidence
We have deliberately kept our comments in this evidence brief, but would welcome an opportunity to give oral evidence or supplementary written evidence.
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