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Briefings

Land Reform Bill (Draft)

Access Legislation and draft Scottish Outdoor Access Code

Summary Briefing Paper
prepared by the Ramblers Association (Scotland)
May 2000

The following summary briefing on the draft access legislation has been prepared by the Ramblers Association and is published here for information  (For full text click HERE)

Contents

bulletSummary
bulletKey Points
bulletRemoval of Sections of the Bill
bulletSections of the Bill that need Significant Modification
bulletSections of the Bill that need to be Strengthened
bulletFeatures of the draft Bill to be Retained
bulletAdditional Points
bulletConclusion

Summary

The principle of establishing a right of responsible access to land and inland water for recreation and passage, subject to appropriate safeguards for health and safety, privacy, land management and conservation, is to be welcomed.

Whilst the draft Bill has many welcome features various elements are of very serious concern. In its current form the Bill will significantly undermine the existing basis on which public take access to land and water and could easily reduce opportunities for enjoying the outdoors.

The behaviour of the public throughout the Foot and Mouth crisis has demonstrated that a voluntary approach to restraining access does work. It has also demonstrated that there is no justification for introducing draconian new powers to restrict access as proposed in Sections 8, 9, 10, 15 and 16.

Key Points

The legislation should more closely reflect the consensus recommendations of the Access Forum:

bulletgiving a more balanced package of responsibilities between users, owners and public bodies;
bulletgiving a clear right of responsible access that is easily understood without expensive mapping and recording exercises to establish where it may or may not be exercised and
bulletthe detail of implementation should be in the Code, not the Bill, relying on co-operation, education and understanding rather than compliance and compulsion.

Removal of Sections of the Bill

The following sections need to be removed from the draft Bill:

Section 8 - Emergency Suspension of Access Rights.

Fire risk etc exists today and has not led to demands for this type of legislation. If incorporated into the legislation this section will expose Councils to endless land manager lobbying for help in dealing with so called "emergencies".

Section 9 - The Suspension of the Right of Access by Landowners.

This power is unnecessary and open to widespread abuse from those landowners who are unsympathetic to access. Reliance on the Code and a more co-operative approach is all that is needed.

Section 10 - Local Authority power to exempt particular land and particular conduct.

Again, this is unnecessary and will expose Councils to tremendous lobbying by land managers keen to restrict access. It will be a huge drain on Council resources.

Section 15 - Creating a New Criminal Offence.

It is unnecessary, against the tradition of access in Scotland and against the spirit of the legislation. Landowners can already call out the police to deal with any "incidents" on their land and the police have to respond. More police officers are needed to deal with rural crime not to chase around the countryside dealing with endless calls from land managers claiming the Code has been breached.

Section 16 - Giving Local Authority's Exclusion Order Powers.

Same problem as section 10. Such a proposal must surely be a fundamental breach of Human Rights legislation.

Sections of the Bill that need Significant Modification

Section 4 (Land over, which access rights are not exercisable) needs significant modification:

Parts of this section are confusing and include reference to, for example, land being used for recreational purposes and cropped land. Constraints for such situations need to be in the Code, not the Bill.

Sections of the Bill that need to be Strengthened

Sections 17 to 28 (local authority powers) need to be strengthened. Recommendations include:

bulleta 'duty' to identify, protect, and manage Core Path Networks
bulleta 'duty' to remove obstructions from all paths whether or not they form part of the CPN
bulletan ability to establish CPNs by other means than formal path agreements and orders
bulletincorporate CPNs into the formal planning process

Features of the draft Bill to be Retained

The existing positive features of the draft Bill must be retained.

bulletintention to give a right of access to all land and water for recreation and passage
bulletno distinction between individual and group access
bulletnew powers to local authorities to remove obstructions

Additional Points

Inconsistencies between the Bill and Code must be resolved.

bulletSection 5 should be redrafted so that conduct excluded from the right is defined in the Code. Details of such conduct should be moved to the code and needs much rewording.
bulletConservation concerns need to be addressed more fully within the Bill and the Code. Section 7 should be amended and a new section on appropriate action for conservation reasons should be added. This should include a duty laid on SNH to erect advisory signs where land managers are reluctant to take the necessary action.
bulletThe important role of local authority rangers in facilitating access (Section 25) should focus on mediation and education rather than policing and 'ensuring compliance'.
bulletThe role of the Local Access Fora (Section 26) should be strengthened.
bulletThe register of excluded land (Section 27) is an unnecessary and probably unachievable burden to give local authorities and therefore should be removed from the legislation.
bulletThe legal situation should be clarified so that the right does extend to wild camping. The 1865 Act should be amended so that recreational camping is clearly excluded.
bulletA statement on liability should be included in the Bill. As proposed by the Access Forum and as suggested by the draft Code, access should be taken at the individual's risk.

Conclusion

Although a right of access would be enshrined in statute, the overall intentions of the draft Bill have been undermined by additional powers, exclusions and exemptions which go far beyond the proposals of the Access Forum, SNH and Sportscotland. The effect of this would be to reduce the rights of access traditionally enjoyed by the public in Scotland.

The Foot and Mouth crisis has made it very clear that public bodies already have or can obtain extra powers to restrict access when this is necessary. It has also shown that the public will behave responsibly where there is a real need to restrain access. The degree to which Scotland's economy is dependent on our unique traditions of access to the countryside has been made plain. Further restrictive powers or exclusions are neither necessary nor desirable.

 

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