The North East Mountain Trust welcomes the very considerable improvement which the Land Reform (Scotland) Bill [AS INTRODUCED] represents over the Draft Bill which was put out for consultation in February of this year. The removal of a number of highly contentious clauses, which effectively undermined the stated objectives of the legislation, means that we now have the basis for an Act which can establish a right of responsible access in a climate which will encourage responsible exercise of that right and that the proposed legislation now largely supports the common law position. It is essential that the Bill should embody customary rights and freedoms in a new statutory right.
We do believe, however, that the Bill as it stands is too complicated and needs to be simplified. Details such as the defining of how access is taken through different types of land according to the crop being grown should be removed from the Bill and dealt with through the proposed Access Code. (We also believe it would be in everyone's interests, not least those of the farming community, if the NFU could be persuaded to rejoin the Access Forum.) We need legislation which will be easy for the public and landowners to understand and which will not offer loopholes for obstructive land managers to exploit in order to undermine access rights. We are sure that Committee will have noted, during the Foot and Mouth crisis, the fundamental important of countryside access to the health of the Scottish tourist industry, now such a vital component of the rural economy. We further believe that a distinctively Scottish right of access could usefully draw on the experience of other European countries such as Norway and Sweden.
Specific Issues:
A general duty of furthering the aims of the legislation should apply to all government departments and public bodies so as to ensure the measures within the Bill are implemented in such a way as to achieve the aims of the legislation.
The words "and regulate" should be removed. The wording of the Draft Bill was preferable in this respect. The behaviour if public and land managers will be sufficiently regulated by specific provisions of the legislation - for example Chapter 4, Regulation and Protection of Access Rights - and by the Access Code. The fundamental objective of Part 1 of the Bill is surely to confer public access.
The legal position and perception of land excluded or exempted from the right needs to be clarified.
The provisions relating to ministerial discretion should be removed or ministers are likely to find themselves continually under pressure from land managers to use the powers proposed. Problems should be dealt with through the Access Code in the first instance. If that approach fails, then specific legislation should be introduced to Parliament or existing legislation - for example on conservation or health and safety - should be amended.
The Code should consist of guidance on responsible behaviour rather than rules. The content of the Code and its acceptability to the various interests will be critical to the success of the legislation.
This section should be removed. As a North-East based body, access to the Balmoral estate is of prime importance to our membership. While we do not anticipate access problems in the foreseeable future, we also fail to see any reason for this exclusion. We believe that land held by the Queen in her private capacity should be subject to the same legislative constraints that that owned by other private individuals. The specific security requirements of members of the Royal Family and their guests can be adequately addressed within such a framework as they are under the present conditions of generally unrestricted access to the estate. The same principles should of course be applied to other lands held privately by the Queen.
This section should be removed. Local authorities already have extensive powers they can exercise in case of genuine need - as was illustrated during the Foot and Mouth epidemic. In addition they will have the ability to create bye-laws under Section 12. Retaining these provisions is likely to place local authorities under continual pressure from some land managers to close areas of land. If it is not considered necessary to give SNH, who can pronounce with some authority on conservation issues, then local authorities should not have such powers either. We would, however, like to see local authorities given power to erect and remove advisory notices in relation to access.
Such land should not be excluded. Rather the Access Code should define when the presence of crops should indicate that the right is not exercised. There are problems with the definition of crops which would be more appropriately addressed within the Code than the Bill. There are also difficulties in relation to access on field margins as those are often included within the cultivated area. It would be easier to modify the Code in response to changing agricultural practices than to amend the legislation.
We believe that business activity should not be excluded from the right. Outdoor training centres such as Glenmore Lodge and Outward Bound Scotland as well as numerous activity holiday companies and mountain guides rely on access to carry on their business. These bodies make an important contribution to the local economy as well as being in a position to educate on responsible access. Such activities should be carried out with regard to the provisions of the Access Code in respect of organised groups and should not have additional difficultes put in their way by being excluded from the right of access. There are also potential difficulties of definition relating, for example, to clubs and to photographers or guide book writers.
This section has the potential to drive a huge wedge into the whole concept of access. Applied to grouse moors, deer forests or fishing beats, it could potentially close huge areas of countryside for a large part of the year. Responsible exercise of access rights in such areas should be defined through the Access Code rather than leaving a major loophole in the legislation.
This section could be interpreted as excluding estate policies. If so, it should be amended to include them.
Some important access routes pass through farmyards. The Bill should be amended to include these within the right unless a suitable alternative route is provided.
While we have no desire to prevent suitable security arrangements from applying to schools, the clause, in some circumstances, could exclude larger areas from the right than are necessary for that purpose
Golf courses can have considerable recreational importance for the wider community - for example walks or sledging. To protect these, the right should extent to golf courses - with provision in the Access Code to ensure their primary purpose is protected.
We remain concerned at the potentially sweeping nature of the exclusion powers granted to local authorities under this clause. While we understand there are legitimate concerns in relation to agricultural areas on fringes of urban areas, there is nothing to prevent abuse of this provision in other circumstances. (We refer the Committee to our submission on the Draft Bill in this respect.)
In National Parks, the Park Board should set up access forums rather than it being the responsibility of the local authority.
While we are pleased to see the legislation establishes duties for local authorities in relation to various aspects of the provisions, we recognise that there are significant resource implications. These will need to be addressed if the local authorities are to play an effective role in the way envisaged.
For and on behalf of the North East Mountain Trust
Will Campbell, General Council Member