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The response of the Scottish Canoe Association to Part 1 of the Land Reform Bill and the Scottish Outdoor Access Code Established in 1939, the Scottish Canoe Association is the recognised governing body of canoe sport and recreation in Scotland. We provide our members with an opportunity to have their views represented at local, national and international levels. Canoeists in Scotland participate in a wide range of activities from recreation, coaching (professionally and as volunteers) and competition on the rivers, lochs, canals, and seas of and around Scotland. The SCA seeks to represent the interests of all paddlers who reside within Scotland and all those who come from outwith to enjoy our waters. The Association has played a full and active part in the Access Forum initially as part of the Access Forum Inland Water group and in the past two years, the meetings of the Access Forum to develop the Scottish Outdoor Activity Code. The Role of the Access Forum and Advice to Government "We believe there is a need to extend the process to form a recognised policy development stage… by making the system more participative, it is intended that better legislation should result" "What is desired is an earlier involvement of relevant bodies from the outset - identifying issues which need to be addressed, contributing to the policy making process and the preparation of legislation." From the Report of the Consultative Steering Group on the Scottish Parliament The Access Forum was an example of the desire to involve civic society in the governance of Scotland as outlined in the above report. The consensus reached and endorsed by Scottish Natural Heritage in its Advice to Government in November 1998, was the result of long and hard debate. That consensus was reached at all, given some apparently irreconcilable interests, is a credit to all parties involved and to the process undertaken. It is disappointing to note therefore that the pre-legislation involvement of the Access Forum, based on a tripartite interest of recreational users, land managers and public bodies, appears to have been by-passed by the Scottish Executive. The draft Bill does deliver on the original principle "a right of access to land and water, exercised responsibly, for informal recreation and passage", but crucially moves away from the balanced package offered by the Access Forum. The net result is that this legislation, far from creating greater opportunity for access to the countryside, will reduce it and drastically undermine the current position. Section 1 Creation of access rights This section defines that the right of access extends to land and inland water - a principle we fully endorse as this accords with our belief that those taking access to water do so under the same principles as those accessing land. The right applies to individuals who may exercise it collectively - this again is a welcome position, given that for the most part recreational activity is undertaken in 'groups'. In particular this proviso is essential to allow the necessary educational process of making people aware of their rights and responsibilities at the point where the impact is greatest - on the ground. It is justified that a leader of a group has further responsibility for following the advice for groups contained within the Code, much in the same way that he or she may take on the responsibility for the safety, wellbeing and learning environment of the group. We also support the fact that the Bill does not seek to qualify recreational purpose, nor to limit and define 'groups' in respect of organised, educational, commercial or other terminology that would require further interpretation. We would go further than this and recommend that the right of access should not be defined by purpose at all and should be held to exist as long as there is no infringement of the criminal law. The SCA believes it is the function of the Code to further advise on exercising the right collectively (para 2.18-2.29) and for what purpose (para 2.3 - 2.5). Overall we approve of the inclusive approach taken to the creation of access rights. Section 4 Land over which access rights are not exercisable This includes land (and water) set out for particular purpose while it is so being used 1(e)(ii). There is concern that this could be used to protect the interests of sporting estates at the expense of the wider public recreational interest. For example, this clause could be used to justify the exclusion of canoeists from an angling beat. This in itself contradicts the advice of the Code, which expects that recreational activities will co-exist (SOAC para. 3.13 and Chapter 5) and goes against the principle of integrated land use for recreational purpose. It is unnecessary to exclude royal land from the right of access given that so much is currently open to public access e.g. Balmoral and Lochnagar estates. To do so would undermine the current status enjoyed by recreational users. On the issue of cropped land, the SCA believes cropped land (which will of course vary from season to season and, year to year) should not be excluded from the right of access and that the correct place for guidance on crops lies within the Code. Section 5 Conduct excluded from access rights Section 3 refers to being on land with a mechanically propelled vehicle. We would prefer that this made quite clear that 'motorised' vehicles were outwith the right - it could be argued that propulsion of a bicycle or a canoe was by (bio)mechanical means. As it stands some of the conduct excluded is so woolly and imprecise as to defy interpretation. Section 5(4)(f) "damaging the land or anything on or in it" and Section 5(4)(e) "taking away anything in or on the land" are cases in point. In the latter example, some of this behaviour would be covered by the existing law - for example, taking property is theft; removing eggs, birds or animals would be an offence under the Wildlife and Countryside Act. However some apparently innocent act such as removing a dangerous object could be construed as exceeding access rights and allow a landowner to invoke the measures of Section 15. Sadly, we find cases where land managers prefer for these dangerous obstructions to remain in place, precisely as a deterrent to access. It is unacceptable that "threatening, abusing or insulting (by words or behaviour) the owner of the land" 5(4)(c) covers conduct that only extends one way. Occasionally canoeists are the butt of aggressive, unpleasant behaviour and words from land managers or their representatives - under this clause such behaviour could continue unchecked, but a response from a recreational user could result in the involvement of the Police and subsequent exposure to criminal proceedings. Such behaviour is unacceptable from any party but there is currently existing civil and criminal law in place to deal with this conduct. Section 5 (1) reinforces the point that access rights do not extend to committing an offence. It therefore seems superfluous to reiterate the conduct referred to in section 5(4), which is listed in Annex 1 of the Code or referred to elsewhere in the Bill. We recommend that the whole of section 5(4) is removed. Section 8 Emergency suspension of access rights There is no demonstrable need for this power. If intended to cope with natural hazards such as flood or fire, then these hazards currently exist and are managed under existing statute, or voluntary measures. Recently the outbreak of Foot and Mouth demonstrated that, even in a national emergency, it is possible to manage access by the use of advisory, rather than statutory, signage in Scotland. Where firmer measures were needed, amendments to existing statute i.e. the Foot and Mouth Act allowed local authorities the mandatory powers they required. Furthermore this clause would expose Local Authorities to the pressure of those who seek to undermine the personal choice of those engaging in activities in inclement conditions - for example, canoeists paddling spate rivers or climbers going out when the avalanche risk is high. We firmly believe it is the choice of the individual recreationalist as to what degree of risk they will accept, and this sentiment is echoed by all that undertake risk activities in the outdoors. Any move that might give rise to liability writs being issued against a local authority for not acting on powers it has been granted, far fetched though this scenario may seem, should be opposed. We believe this clause is superfluous and would recommend its removal from the Bill. Section 9 Suspension of access rights by owner of land This section is of grave concern to the Association as it gives landowners that are unsympathetic to access, very broad and sweeping powers to suspend access to land and water. As it stands, these suspensions could be extendable and renewable throughout the course of a land management year, and granted for any activity they feel would be interfered with by a person exercising their right of access. Landowners fishing a beat, stalking a corrie, moving stock would all be given carte blanche to close land and water, and disentitle individuals of their access rights. Furthermore, there is no mechanism in section 9 that would allow a person to challenge a land manager who they suspect of staging a "lawful activity" for the purposes of restricting access. The land manager however could invoke section 15 and involve the police. Once asked to leave and having refused to do so, that person would be in a position of having to go to court to defend the charge of refusing to leave land, when in fact the original reason they were required to do so, may have been invalid. The prospect of criminal proceedings is a huge deterrent to anyone using the countryside for enjoyment and leisure, however strongly they might feel that their right has been compromised. This section is a charter for the maverick landowner wishing to discourage access at all cost. In particular we are concerned that the recent FMD outbreak has revealed a significant minority of landowners who have used the situation to exclude people from their land unjustifiably and in contradiction of the advice offered by the Scottish Executive. To allow land managers statutory license to continue to do so under the new Bill would be to invite the steady erosion of access rights 'on the ground' and undermine the recreational and tourist industries of Scotland. Outwith the experience of Foot and Mouth, a whole range of land management and sporting activities all occur on a daily basis that do not require the invocation of statutory restrictions on the general public. Guided by the advice of the Code, and the principles of responsible behaviour, land management activities and recreational use of land and water, can continue to co-exist in the same way they have done in the past. Additionally we find it contrary to natural justice that one individual can effectively remove the right of another individual, and can find no supporting evidence that this is the case in Scottish jurisprudence. We strongly recommend that section 9 is removed from the Bill. Section 10 Local Authority power to exempt particular land and particular conduct The inclusion of this section raises important concerns about the need for consistency. The Bill introduces a right of access throughout Scotland that should not be undermined by differing interpretations on a regional level. Local Authorities will be exposed to powerful lobbying by land mangers putting forward their "special case" to restrict access to land and water, and are ill equipped with the resources to deal with this pressure. It is important that Local Authorities are seen to be even handed and fair in their dealings with access for the general public. Given that the Bill provides for the extension of bylaws over private land, itself a great increase in the powers available to local authorities, we believe this section is superfluous and that it should be removed.
The SCA is concerned about the inequitable treatment of land and inland water in these sections. The bylaw powers under section 12 have been used to date in the Civic Government Act 1982 to regulate the use of powered craft on water and as motorised access is not included in the right of access, we would expect that this would remain to be the case. However as the new section now specifically includes reference to canoes, we remain concerned that the intention of this section is to create differing criteria for regulation over water based activities, than those on land. For example, the criteria for bylaws in section 11 and 12 show disparity. Section 11 allows for the use of bylaws to balance the interests of both user and land manager "so that each of those is relieved of undue interference by any other with those respective rights". However under section 12 it is simply enough to be able to regulate the right per se. Whilst we recognise that there is still a need to legislate for regulation of motorised craft "for the purposes of preventing nuisance or danger etc" it would not seem appropriate to do so in the context of this Bill which specifically excludes motorised vessels. Moreover, we fail to see how canoes could be a nuisance or danger, or impinge on natural beauty, any more than a bicycle or a horse or a walker! We consider that it is unjust that this legislation should permit a greater degree of control over water users (excluding motorised vessels) as opposed to cyclists, horse riders, and walkers. We are particularly concerned with the clause concerning the regulation or prohibition of any activity by way of trade or business with members of the public Section 12(1)(c). As has been graphically apparent in the last few months, many businesses in Scotland rely on access to the countryside to run outdoor activity holidays, training courses, educational and coaching courses. It is inequitable that people operating in water based venues should be open to more regulation than those operating on the hill or crag, given that the Access Forum recognised that the principles of access to land and water are indivisible. In addition, as the term 'land' as referred to in the Bill includes inland water, it is confusing to have two sets of bylaws in place. We cannot see a 'special case' for Section 12 and suggest that section 11 is sufficient to apply the same criteria to land and inland water in the regulation and facilitation of access rights. Section 14 Prohibition, obstructions, dangerous impediments etc Locked gates should be included in the list of obstructions - particularly as negotiating a locked gate can result in collateral damage to the gate itself, or surrounding walls or fences. This damage, although unintentional and as a result of an obstruction, would probably count as conduct excluded from the right in section 5 (4)(f) and unwittingly cause a person to fall foul of section 15. A landowner, who does not comply with the Code, by blocking responsible access, may be dealt with by the Local Authority who can, at most, remove the obstruction. This sits uncomfortably with the fact that a recreational user who breaches the Code is liable to be dealt with by the Police or an authorised officer of the local authority backed by criminal sanctions. This is another example of the inequality of justice whereby there are numerous controls on the takers of access, and almost none on those who restrict it. Section 15 Expulsion and Exclusion: offence provision Behaviour that could be described as 'irresponsible' is already covered by existing statute or common law - for example driving off road, control of dogs, damaging crops or wildlife habitats etc, breach of the peace, malicious mischief, lighting a fire, poaching, pollution of water, vandalism, disturbing wildlife, theft of eggs. In recognition of this, the Access Forum specified that no new criminal offences were needed, but that existing statute could be made to work more effectively. A singular problem with this section is that it creates an offence on the back of alleged conduct, that in reality may not have contravened the Code (1)(a) or exceeded access rights (1)(b). One is assumed guilty before innocence has been established. A policeman or ranger is put in the invidious position of deciding whether this conduct (which they may not have borne witness to) is a) in persistent contravention of the Code or b) exceeds the right of access. As mentioned earlier, the fact that this section is so one sided, and the prospect of being subject to criminal proceedings if one defends oneself, will be enough to deter most people from taking further access, even if they are 'in the right'. Appeal to a Local Access Forum offers a very diluted and long term solution for the user who has been unlawfully ejected from the land - whilst for the landowner, the Police, Rangers and ultimately the Courts are put at their immediate disposal to deal with real or 'apparent' miscreants. The Access Code is not written as a set of "rules" so deciding how someone has 'persistently contravened' what are in effect guidelines, would be subjective and imprecise. Some of the guidance for example is couched in terminology such as "where appropriate or "where practicable", whilst 'should' and 'must' imply differing degrees of compulsion. This is perfectly appropriate given the flexible nature of the Code, and the need for recreational users to exercise judgement in their interactions with land managing interests. It appears to us that there is no need to create another criminal offence to deal with recreational access. If the law has been broken, the fact that a person is there under the right of access is immaterial and would not prevent them being arrested for committing an offence. We consider that the existing facility for a land manager to seek interdict against an individual is adequate provision in the rare need to prevent a person returning to land (who hasn't committed an offence). That so few interdicts have been made against recreational users of the countryside, testifies to the fact that such as measure is of last resort and only likely to be awarded in cases of substantive, rather than trivial, disturbance. We recommend that serious reconsideration is given to section 15 and 5 and recommend that they are removed from the Bill. Section 16 Local Authority Exclusion Orders By extending range of the authorities jurisdiction to all land and water in its boundaries, this section hands a good deal more control to Local Authorities, and we believe that Exclusion Orders offer way too extreme a measure to deal with recreational access to the countryside. Exclusion Orders have been available to authorities under the Civic Government (Scotland) Act 1982 and they are used in conjunction with management rules, to cover behaviour in premises such as libraries and swimming pools. However such measures are not regarded as being efficacious or workable by local authorities in this small-scale context - and so will be dimly regarded in the context of all land and water within an authority's jurisdiction. Section 16(5) allows the excluded person to make a representation to the local authority but this offends against natural justice in that they are appealing to the very body that made an Exclusion Order against them in the first place! Additionally, this right of appeal only takes effect after the order has been served. On both accounts this is entirely wrong. We do not believe there is a need for this power and strongly recommend its removal from the Bill. Chapter 5 Local Authority functions As local authorities have been given greater power to regulate access through the use of extended bylaws, exclusion orders and emergency power of suspension, it is surprising that they have not been given a duty to provide for and facilitate access. Resources and political will influence their discretionary powers, and if extra resources are not ring-fenced, they may become absorbed into general funding and not benefit access at all. To summarise we believe that Local Authority powers should become duties and that there should be recognition that Core Path Networks will include waterways. Section 25 Rangers The role of rangers is stressed as one of 'ensuring compliance' rather than education - this will be a very different role to that of the existing ranger service and their representative body will no doubt have comments to make on these issues. The SCA believes that the remit of a ranger is to advise, educate and inform the public on access, and that this should be made explicit in the Bill. The reference to a policing role for rangers should be dropped. Section 26 Local Access Forums There is a concern that recreational interests will not be able to be adequately represented on Local Access Forums. Given that there will be at least 32 Forums meetings on average twice a year, this is a minimum of 64 meetings - possibly twice as many. It is unlikely that the SCA will be able to field sufficient volunteers of a calibre to represent canoeing interests on these Forums - and this will be echoed by other small staffed voluntary organisations such as the Mountaineering Council, the British Horse Society and others. Experience of Foot and Mouth has indicated that Local Authorities have come under undue pressure from landowners wishing for support to 'close' their land - support that has been all too readily given in many cases. This confirms our belief that it is essential that local authorities have a duty to promote and provide for responsible access - to balance the extra powers they have to act in the interests of land-managers.
It seems ironic that the only duty that the local authority has place on it is the negative function of keeping a land register of where rights are not to be exercised. This will impose an undue bureaucratic burden on local authorities and involve them in the extensive mapping and record keeping which is so detrimental to the legislation south of the Border. We suggest that this section should deleted and as mentioned above, more duties given to LA to facilitate, promote and protect access rights. Section 38 Amendment of Criminal Justice and Public Order Act etc. Trespass is made a criminal offence - a step that goes entirely against the tradition of access in Scotland, and was successfully resisted in the course of the CROW Bill in England and Wales. This will have the net effect of discouraging access to the countryside. It should be made quite clear that his Act is not intended to be used against recreational users of the countryside, and strong consideration should be given to reviving the principle stated by Tom Johnston back in 1942 "There is no law of trespass in Scotland. Any member of the public is at liberty to walk over any land in Scotland provided he does no damage to crops or fences…" Tom Johnston Secretary of State for Scotland Liability We strongly believe that there should be a statement in the Bill to the same effect as that in the Code (3.12) concerning liability. Namely that the exercise of access rights access is undertaken at the users risk. This is a statement well understood and supported by our members and others partaking in risk activities. We see no reason for liability to increase given that the extent of access taken currently is unlikely to increase post legislation. Wild Camping The Trespass (Scotland) Act 1865 does not prohibit wild camping. It makes it an offence to encamp, which in the context of the day, was clearly aimed at travelling people or homeless people who intended to set up a camp to live in. Wild camping has been a long tradition of many recreational people as part of land or water based journeys. It does not affect the viability of commercial campsites as those camping wild are seeking a completely different experience to that of a commercial site. We strongly recommend that the original Act be altered to make it clear that wild camping is not an offence, and commend the wording of the Code (2.5 and 5.2) which recognises the place it has within recreational experience and offers useful guidelines for minimum impact. Canoeing and the Definition of Recreation Canoeing can be a recreational activity, an amateur sport, or a livelihood to those that participate in it - for many people, it is all three. Over the years a network of relationships has been developed between organisers of groups or events, and land managers regarding access to land and water for the purposes of staging national, international, local, informal, club, charity or 'fun' events. The lack of access disputes pertaining to these events is a testament to the viability and success of these relationships. The model they work on is mirrored in the Code - the assumption that each individual has a right to be taking access, but that the need for facilities or services, or consideration of disruption requires the close co-operation of the above parties. It is widely recognised that it is a practicable impossibility that any event of scale could be organised without reference to the land manager. Within the framework of this Bill, if attempts are made to restrict or debar certain activities or people, this would result in confusion and an almost unworkable system, undermining perfectly satisfactory relationships and creating a burden of bureaucracy that would be as tiresome for the land managers as for the users. We therefore believe that it is essential that the definition of recreation must include all forms of competitive or organised event (i.e. the right of access remains with each individual regardless) but that the Code is used as source of reference for organisers and leaders of recreational, competitive and educational activities. The Balance of the draft Bill We are concerned that within the Bill there is a message that recreational usage of the countryside is a 'problem' and that strong sanctions and threats are needed to control people. Recent experience of Foot and Mouth amply demonstrates the fallacy of this belief. It is clear that all required to 'manage' people are good reasons, backed up by advisory notices, alternative routes and explanations. Compliance with signage during Foot and Mouth hasn't even depended on whether the signs are official or unofficial, advisory or mandatory. Recreational users have chosen to exercise restraint even where the restrictions have been unjustified! Therefore we believe that the Bill should be redrafted so that it reflects less of a bias in favour of land managers, and that it is put firmly back on the track following the advice of the Access Forum and SNH. To this extent it needs to reflect a co-operative approach rather than one based on compliance and compulsion. The intention of this legislation was to clarify and create greater opportunities for access to the countryside for the general public. Unless this initial draft is substantially reworked it will fall far short of delivering this aim. Indeed it will completely undo the distinctive traditions that underpin the de facto position on access that exists today, and leave thousands of recreational users from home and abroad feeling robbed of the opportunity to build upon, and enshrine in law, our current freedoms to access land and water. |
