We very much favour the elaboration of the legislation through the development of a Scottish Outdoor Access Code as proposed by Scottish Natural Heritage in consultation with the Access Forum. We believe this approach is more likely to secure general support than a punitive one which flies in the face of Scotland's perceived and cherished traditions in respect of access. It is therefore particularly regrettable that some provisions of the Draft Bill have moved in the direction of that punitive approach. We would ask the Executive to abandon those provisions in favour of evidentiary use of violations of the Access Code by recreational users OR land managers in those cases where legal proceedings are found to be the only way forward. We also very much support the proposition that an extensive educational effort will be required to promote the principles and detail of the Access Code and point out that this effort will require adequate funding.
We do however welcome the following aspects of the Draft Bill:
We would like to make the following comments on the specific points raised in Section 6 of the Consultation Paper.
6.2 We do not consider it necessary for the Bill to include blanket exclusions of activities such as ball games or organised events. The Draft Scottish Outdoor Access Code already contains considerable guidance as to appropriate activities and behaviour and can be extended in future if it proves necessary. A provision which could be applied against a family kickabout seems more likely to bring the legislation into disrepute than to achieve any useful end.
6.3 Although there is probably not a general problem with access routes through farm steadings (defined by Chambers Dictionary as 'farm buildings with or without the farmhouse'), we think it is important that the local Access Forum should be involved in situations where there is a potential problem with an access route in close proximity to a farmyard. Current good practice is for the land manager to sign the preferred route and this should be encouraged.
6.4/6.5 We believe that the correct approach to the issue of crops is not to legislate in the manner proposed but rather to rely on the Access Code, suitably publicised. Otherwise we will continue to have potential for arguments between land managers and recreational users as to where the latter are entitled to be. We therefore recommend the removal of Section 4(1)(i) from the Draft Bill. We believe there is a potential problem relating to Section 4(5) in that if a field is sown to its edges, the walker attempting to exercise responsible access round the edges will still be guilty of an infringement. Section 4.11 of the Access Code does offer guidance to land managers in this area but the weight of the legislation is being directed against the walker rather than both parties being treated equally. We also feel that, in general, the Draft Bill fails to make sufficient distinction between enclosed and unenclosed ground - in particular the high open moorland (even when enclosed by deer fencing). Restrictions which are appropriate for the former are out of place on the latter.
6.6 We are very concerned at the provisions of Sections 15 and 16 which will have the effect of criminalising the law of trespass in Scotland and also of establishing a very inequitable relationship between the land manager and the recreational user. There is no corresponding suggestion of creating a criminal offence for land managers who repeatedly contravene provisions of the Access Code although such behaviour would be equally reprehensible. The powers of exclusion suggested for local authorities also seem to us much too severe. The original intention of the legislation, as we understood it, was to legitimise and clarify the traditional freedom of access to the countryside enjoyed by the Scottish people while instilling a spirit of co-operation between recreational users and land managers which would encourage responsible behaviour by all parties. The criminalisation of recreational users seems to us to undermine this strategy as well as leaving the recreational user worse placed legally than under the status quo. These provisions would have the effect of criminalising public access and contrast unfavourably with the less punitive approach of the Countryside and Rights of Way Act in England and Wales. Enforcement of these provisions will be very difficult and burdensome to police forces and local authorities. Mechanisms for encouraging compliance with the desired standards of behaviour are more likely to be productive than coercion. There is a disturbing absence of an appeals mechanism in relation to exclusion orders. Anyone who is the subject of such an order should have a right of appeal through the courts. We recommend the removal of Sections 15 and 16 from the Draft Bill and a return to the approach recommended by the Access Forum.
6.7 If contravention of elements of the Access Code is to have evidentiary status in case of legal action, surely the Code itself makes these definitions clear enough - for example through the specific exemptions in 2.7.
6.8/6.9 Section 9, in our view, allows far too much leeway to land managers hostile to access to put obstacles in the way. We believe this section should be removed and the Access Code used to define circumstances where land managers can request the public not to exercise their right of access for short periods of time when land management or conservation reasons make it desirable. In all such instances, the land manager should have a duty to indicate alternative routes and to make all relevant information clearly available. We commend for Ministers' attention the approach of the Countryside and Rights of Way Act 2000 for England and Wales in this respect. Section 22 of that Act sets clear limits on the total number of days on which access can be restricted or excluded and sets further limits within that total in relation to weekends and bank holidays. Where access to a particular area is to be restricted for reasons of conservation, the closure should require the consent of Scottish Natural Heritage. Landowners should be required to notify the local authority when the right of access is suspended. Where there is no practical alternative to the route which is being restricted, constraints on the land manager should be tighter and the permitted closure period shorter.
6.10 We are concerned that the Draft Bill does not give local authorities sufficient powers to enhance and develop path networks. Local authorities should have a DUTY to protect and manage core paths and should be given sufficient resources by the Scottish Executive to do this effectively. In general, we believe the definition of core paths should encompass through routes, coastal paths and routes through enclosed ground onto open high ground. We also suggest that the local Access Forum in each area should consider the issue and pass its conclusions on to the local authority.
6.11 We believe that the resolution of disputes needs both to take account of local knowledge and to ensure consistency in different parts of Scotland. The sheriff court could provide that local connection while taking account of national legislation and policy guidelines. Parties to the dispute should have the right of appeal to a higher court.
6.12 We completely agree that individuals and groups who exercise a right of access must take responsibility for their own actions and accept that they exercise that right at their own risk. It would not be reasonable to extend the liability of landowners in this context.
We would also like to comment on the following issues:
We are strongly opposed to the inclusion of Section 8 giving local authorities power to suspend access because of "extreme weather or for other reasons of emergency". It has been abundantly clear from the Foot and Mouth crisis that sufficient powers already exist to restrict access in an emergency and we see no need to create additional powers. We also believe it is totally inappropriate to expect local authorities to make judgements as to what constitutes "extreme weather". It is an important aspect of many outdoor activities that informed decisions have to be made about weather conditions and related hazards and it is the responsibility of the individual or individuals concerned to make those decisions. This provision would simply lay local authorities open to excessive lobbying by landowners hostile to the principle of access. Furthermore, if a local authority has the power to suspend access because of "extreme weather" and decides that a given situation is not sufficiently "extreme", does it then lay itself open to an action for negligence in the event that a member of the public suffers weather-related injury while exercising a right of access? This provision is likely to be unenforceable, to be widely flouted if applied and in consequence to bring the legislation into disrepute.
We take issue with the comment in 3.19 that the Trespass (Scotland) Act 1865 prohibits Wild Camping. That Act was aimed at preventing homeless people from "encamping" - setting up home on someone else's property - not at prohibiting hill-goers from putting up a tent to get a few hours sleep. We endorse the comments of the Access Code (2.5, 5.2) in relation both to the inclusion of wild camping within the right of access and to the additional responsibilities of those who undertake wild camping.
In relation to Section 7 (2), we believe more guidance should be given to Scottish Natural Heritage in relation to which bodies other than local authorities are required consultees for the development and subsequent modification (if required) of the Scottish Outdoor Access Code. It is essential that key bodies representing the major interests should be involved if the Code is to have credibility. Therefore the need for consultation with bodies representing landowners, farmers and crofters on the one hand and mountaineers, canoeists, walkers, cyclists and horse-riders on the other should be clearly spelled out in the legislation.
We are unhappy with the inclusion of Section 25 (2)(b) as worded. We believe countryside rangers can be most effective in the enhanced educational role which the legislation implies. Specifying "to secure compliance" as one of the primary purposes of the ranger is likely to change the public perception of rangers and perhaps, over time, the character of individuals drawn to the occupation. Compliance with the legislation and with the Access Code is more likely to be secured in most instances by education and encouragement than by punitive measures. The role of the ranger should be seen as a primarily educational one and enforcement left to the police and courts. We suggest amending this clause to read "to encourage compliance" rather than Specifying "to secure compliance"
We believe there is scope for abuse in relation to Section 23 (2)(c). Warning signs in relation to the presence of a bull in a field which is crossed by an access path will surely have the effect of discouraging access, irrespective of whether the animal represents a genuine threat or not. This provision appears to be in conflict with the provisions of 14(1) relating to signs or animals being used to deter or prevent access. Where a land manager requires to pasture a bull, or any other animal, which cannot be guaranteed to be safe, in a such a way as to affect an access route, there should be a requirement to indicate an alternative route.
We have some concerns in Section 4(1) about the exclusion of Royal Parks and land held by the Queen in her private capacity from the scope of this legislation. Although historically access has not been a problem in relation to the Balmoral estate, the most important such property, the possibility nonetheless exists that a future monarch might be less accommodating. The Balmoral estate contains Lochnagar, one of Scotland's best-loved and most spectacular mountains, whose cliffs, along with those of the neighbouring Creag an Dubh Loch, have been a vital component in the development of Scottish climbing. A rich variety of high-level and low-level walks, cycle routes and an outstanding natural heritage are additional factors which make Balmoral a particularly important estate. We believe that access to it should be secured for the Scottish people and for our visitors in perpetuity. We recognise that there are security issues which must be addressed in relation to members of the Royal Family. We do not, however, believe that it is necessary to exclude royal properties from the legislation to achieve this and can see no other reason for its inclusion.
We believe that Sections 27 and 28 relating to the registering and certification of land are an unnecessary burden on local authorities and should be removed. If there is a presumption that land is generally subject to a right of access, any exceptions, temporary or permanent, should simply be identified by local signposting.
We are also somewhat surprised that Access and Right to Buy have been included in the same Bill. The two issues have little in common other than that they both relate to land.
For and on behalf of the North East Mountain Trust
Will Campbell, General Council Member (June 2001)
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