A Guide to Access Law in Scotland

What is the existing law and tradition regarding access in Scotland?

The basic position is that while people have no right in law at the moment to be on land an water they are equally committing no offence by being there. the precedence of Scots Law holds that "everything is permitted unless it is expressly forbidden".

There is a long held tradition of peaceful access over land and water in Scotland, which the SCA along with other recreational bodies, believes amounts to a common law right of access.The SCA has been much persuaded in the past year by the research of Alan Blackshaw in this matter. It is worth being aware that those who take a legalistic perspective argue that a "tradition" or "precedence" of access does not amount to a right.

Landowners Remedy and Interdict

If you go onto a landowner's property (water or land) and they wish to remove you they may ask you to leave. They cannot ask the police to remove you, but if they call the police to an "incident" they are obliged to turn out. Unless an offence is being committed e.d assault, breach of the peace - they have no locus to act. If you refuse to leave, the owner can only progress matters by seeking an interdict against you as a named individual to prevent you coming back again. Trepass simply refers to being on land or water without permission, but it is a civil matter, and the SCA know of no cases where a person engaged in peaceful recreation has been dealt with in this way. (A case where an interdict was sought against someone operating commercial was recently thrown out).

What is certain is that access can be very tenous. Long standing unproblematic access at a certain point on a river or loch can change overnight with a change of landowner and a change of heart. Fences, signs, intimidating encounters and harassment can quickly alter the nature of the access experience for canoeists and other users, so an uneasy balance exists. On the one hand, recreational users have few clear legal rights and taking access by implied consent is insecure. On the other hand, landowners often have few workable remedies against irresponible behaviour. This uneasy balance favours the "confident user" and the landowner that actively discourages access. Most of the conflicts that do occur do so when these two parties meet!