Current progress

Scottish Outdoor Access Code
consultation period
Advice on responding
MCofS consultation response (pdf)

The Land Reform (Scotland) Bill
first impressions
MCofS evidence
Supplementary Evidence
Reaction to Committee Report
Threat to night time access
Confusion on Outdoor Education

Is Trespass Illegal in Scotland ?
Commercial Activities in the Hills?
Needs of the people, not just Skibo's guests
Access to Balmoral Estate secured

Passing of Bill welcomed
What happens now?
Royal Assent given to Act

Previous events

Draft Land Reform (Scotland) Bill -
Consultation Paper
MCofS response
Petition taken to Parliament

One point which has been discussed at length during the parliamentary Committee stage of the Land Reform (Scotland) Bill has been section 9(2)(a). The Bill gives access rights to all, except in given circumstances, and this section proposes that the right of access should not automatically apply to persons going onto land while conducting a business or other activity which is carried on commercially or for profit. This could particularly affect mountain guides taking parties onto the hills.

The lead committee in the examination of the Bill at stage 1 of its parliamentary process is the Justice 2 Committee. They have heard the proposal supported by the National Farmers Union of Scotland and the Scottish Landowners' Federation. At the first evidence gathering session, the SLF representative suggested the target would be businesses 'which may choose to make habitual use of someone else's property for commercial gain without any obligation to contribute towards the costs or to compensate for the disturbance that the landowner experiences.' They consider the section to be an important part of the balance of the Bill.

The Committee then took evidence at a public meeting in Inverness and heard from witnesses from the Scottish Sports Association, the Scottish Countryside Access Network and the Scottish Outdoor Recreation Network who suggested that people affected could include mountain guides, or people who went onto the land to take photographs, which they might sell. Differentiation, they said, must be made between the activities of such people, who do not disturb the landowner's use of the land, and large events such as the T in the Park festival, which clearly do.

Alan Blackshaw also warned that Parliament should not try to make the distinction. It would be a cause of many problems in the future and would be adverse to tourism as people would be unsure as to their rights, particularly if they were approached and questioned as to whether they were on land for commercial purpose.

Later in the process, the committee took evidence from Ross Finnie, the Minister for Environment and Rural Development, whose department now has the responsibility for promoting the Bill. From his evidence we understand that it is the intention that no existing rights of access will be lost, although it is far from clear what the existing rights are (see separate story). A mountain guide who has already been accessing a piece of land would continue to have the right to do so but another, who perhaps had just started up in business, would not. It was also suggested that the clients making up a party would have an individual right of access which their guide didn't.

Another committee which has been taking evidence on the Bill is the Rural Development Committee who have focussed on likely impact of the proposals on agricultural and other rural businesses. Among the witnesses who gave evidence at their public meeting in Gartocharn were VisitScotland who advised that this provision could be extremely damaging to rural businesses.

The Rural Development Committee have already published their conclusions, and stated that they consider the potential inclusion of many activities which are at the forefront of outdoor education and tourism in section 9(2)(a) renders the provision short-sighted and inappropriate. They also criticised the confusion this would lead to in the general public for whom this Bill should be a clear statement of rights, and recommended that the section should be deleted from the Bill.

Meanwhile, Ross Finnie continues to support section 9(2)(a), so the threat of a licence to hassle any visitor to the countryside still stands like a black mark on this draft legislation. Any group leader or organiser has extra responsibilities, over and above those of an individual taking access, but the level of that responsibility is dependent on many factors, such as: time of year, nature of activity, need for special facilities, number of people, and so on. It is the impact that an activity is likely to have, not the fact that it might be commercial per se, that is of consequence. The Scottish Outdoor Access Code is the proper place for spelling out responsibilities and dealing with shades of grey.

If you still believe that section 9(2)(a) should be in the Bill, ask yourself where the line should be drawn. For instance, should an individual who goes for a walk and takes a photograph for his or her own pleasure, but then gets paid for that photograph ten years later, be considered as commercial? If not, where do you draw the line? We believe that if you can't draw the line then the whole clause should be taken out of the Bill and dealt with by the Code.

Full transcripts of all of the evidence taking sessions mentioned on this page can be accessed via the Bill Diary.
Comment on section 9(2)(a) can also be found in the MCofS written evidence to the Justice 2 Committee.

Land Reform (Scotland) Bill