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Scottish Outdoor Access Code
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The Land Reform (Scotland) Bill
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Is Trespass Illegal in Scotland ?
Commercial Activities in the Hills?
Needs of the people, not just Skibo's guests
Access to Balmoral Estate secured
Threat to night time access
Confusion on Outdoor Education

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

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

It has long been the accepted that trespass isn't an offence in Scotland. However, speaking at a public meeting in Inverness where the Justice 2 Committee of the Scottish Parliament were taking evidence on the Land Reform (Scotland) Bill, legal expert Alan Blackshaw quoted two alternative views and called on the politicians to come up with a definitive answer.

Mr Blackshaw cited Tom Johnston, Secretary of State for Scotland in 1942, as having defined what he believed to be the true position.
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 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.

However he pointed out that, Section 5(3) provides that the bill does not interfere with the common-law rights, leaving the question: what is the nature of the common-law rights? The problem is that there are two Government positions: the 1959 position, which is that trespass is not a civil wrong, and the 1967 position, which is that trespass is a civil wrong. He suggested it is unprecedented that there should be two Government positions on the same issue, and advised the committee to consult with the Executive and find out which it believes to be right. The difficulty is that the bill has been drafted, to a large extent, to redress the problems of the 1967 statement, whereas the population at large is still working on the 1959.

The 1959 position, following the report of the Law Reform Committee for Scotland, was:
In England, a trespasser commits a civil wrong. In Scotland, he does not necessarily do so.

The second position was developed in 1967, when the 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 ... 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

One of the purposes of the 1967 view was that there were to be access agreements, under which access to land would be paid for. The bill included a provision for £3 million, in today's money, for payments to landowners for access. There was an experiment involving three landowners—one of them was Colonel Grant of Rothiemurchus. When the proposal for an access agreement reached Inverness, the council was requested to pay 25 per cent of the cost. The Inverness councillors said that there was no reason why they should pay for something that they already had and refused to have anything to do with the agreement. The financial objective was rightly stopped.

That was a major setback for the 1967 policy. The problem is that, since then, the Countryside Commission for Scotland and Scottish Natural Heritage have had no choice but to follow that statement, even though it appears to be without foundation.

The full transcript of Alan Blackshaw's evidence to the Committee can be read in the Parliaments Official Report.

Since that meeting, the Justice 2 Committee have taken evidence from Ross Finnie, the Minister for Environment and Rural Development. He insisted that existing rights of access were not going to be altered by the Bill, but when questioned, did not come up with an answer as to what the existing rights were.

The committee finally arranged an extra evidence gathering session where the witnesses included the Law Society of Scotland and Alan Blackshaw again. Differing views on the legal position were again produced, and we now wait for the committee to produce its report to hear what they have made of it all.

For more background on this, see Alan Blackshaws article The Lore and Law of Scottish Access, which was published in issue 4 of The Scottish Mountaineer.

Land Reform (Scotland) Bill