Dave Hewitt wades through the jargon and legalese of the second draft of the Land Reform (Scotland) Bill and broadly welcomes the changes from the first version - he thinks!
The Land Reform (Scotland) Bill, the highly contentious piece of proposed legislation which drew much criticism and comment during its initial consultation stage earlier this year, has just reached the next stage in its development.
This morning the Scottish Parliament website published the latest draft version and this can be found at www.scottish.parliament.uk/parl_bus/legis.html Note however that as with previous Scottish government documents placed in the public domain, it's an Adobe Acrobat file and so might not be easily readable for a lot of folk even once you've downloaded its third of a megabyte.
The bill is in four main parts, each subdivided into chapters. Part 1 is entitled "access rights" and it is mainly this that is of interest here, rather than parts 2-4: the community right to buy, the crafting community right to buy and "general and supplementary".
It's all very jargony and legalspeakish, as you might imagine - there's an irony in that the politicians and their civil servants seem determined to make the access bill inaccessible to the general public.
Take this typical section, for instance, from near the start: "Access rights to be exercised responsibly (1) A person has access rights only if they are exercised responsibly. (2) In determining whether access rights are exercised responsibly a person is to be presumed to be exercising access rights responsibly if they are exercised so as not to cause unreasonable interference with any of the rights (whether access rights, rights associated with the ownership of land or any others) of any other person, but: (a) a person purporting to exercise access rights who, at the same time: (i) engages in any of the conduct within section 9 below or within any bye-law made under section 12(1)(a)(i) below; or (ii) does anything which undoes anything done by Scottish Natural Heritage under section 26 below is to be taken as not exercising those rights responsibly; and (b) regard is to be had to whether the person exercising or purporting to exercise access rights is, at the same time: (i) contravening any rule of responsible conduct set out in the Access Code and incumbent on persons exercising access rights..."
Etc etc. Jeez-o. It's so good to see people-friendly government in action.
Anyway, what does the new version of the proposed bill actually say re the contentious clauses in the earlier draft? With the thing so gobbledgookish and so newly off the electronic presses, it's hard to pull out precise details but it does seem that most of the really wacky clauses from last time round have either vanished completely or have been substantially toned down.
First and perhaps most important, the idea that access-related matters might switch from civil to criminal law appears to have gone. Thank goodness for that. Any criminalisation of walking or climbing that was deemed "unsuitable" or "inappropriate" by a misanthropic landowner would have proved a complete nightmare. It would have massively raised the stakes in existing access blackspots such as Lawers and Largo while potentially adding a whole bunch of new troublespots as landowners and smallholders caught on that they could now call in the cops without fear of being done for wasting police time.
As it is, the only use of the word "criminal" in the new draft comes in the General and Supplementary section at the end, where we find this: "Criminal Justice and Public Order Act 1994 (c.33) 9 The Criminal Justice and Public Order Act 1994 is amended as follows.
10 After section 61(4) (circumstances in which persons who, although not originally trespassers on land, have become such may be directed by police to leave) there is inserted: (4A) Where, as respects Scotland, the reason why these persons have become trespassers is that they have ceased to be entitled to exercise access rights by virtue of: (a) their having formed the common purpose mentioned in subsection (1) above; or (b) one or more of the conditions specified in paragraphs (a) and (b) of that subsection having been satisfied, the circumstances constituting that reason shall be treated, for the purposes of subsection (4) above, as having also occurred after these persons became trespassers."
Which I think means, if I can cut through the verbal foliage, that an incident needs to be pretty specific and pretty far-down-the-line before the police would get involved at a criminal level.
The earlier version also included proposed restrictions on land access at night and in "extreme weather", whatever that might be (one person's nightmare gale is another person's exhilarating battle with the elements). This time round neither the word "night" nor "weather" appears in the draft, at least not if my PC's search facility is reliable, so it looks like we're OK on those fronts. So character-building storm-walks and moonlit ridge traverses remain things we can legally as well as morally do in Scotland.
As for camping - and wild camping was clearly under threat in the earlier draft - the word "camp" only appears once, thus: "Amendment and repeal of enactments Trespass (Scotland) Act 1865 (c.56) 1 Section 3 (which creates the offence of occupying or camping on land without the consent of its owner or occupier) of the Trespass (Scotland) Act 1865 is renumbered as subsection (1) of that section and after that subsection there is added: (2) Subsection (1) above does not extend to anything done by a person in the exercise of the access rights created by the Land Reform (Scotland) Act 2002."
Which I think leaves things pretty much as they were - although, as with all these clauses and proposals, if anyone interprets them differently then please do get in touch with your thoughts at Dave.Hewitt@dial.pipex.com
A more contentious area is that of crops. For the recreational land user there are at least two potential areas of difficulty here - the situation concerning arable fields and the proposed blanket allocation of grass as a crop. Scotland has numerous places where arable fields are walked around or even across by locals out of season, ie once the year's crop has been harvested and the field ploughed and there has never been much of a problem with this. The worry was that this new bill would put such fields - including the field edges - permanently out of bounds, greatly restricting the access options in a lot of rural and semi-rural areas.
Similarly, the wholesale reallocation of grass as a crop could lead to the abrupt closure of a great many hills in the southern Highlands and southern Uplands, especially those under sheep. The new draft however doesn't feature the word "arable" apart from once in the section about crofters' right to buy. Crops do - ha - crop up however, in a section headed "Land over which access rights not exercisable":
"The land in respect of which access rights are not exercisable is land: (j) in which crops have been sown or are growing; (b) includes land on which grass is being grown for hay and silage, but does not otherwise include grassland; (c) does not include unsown headrigs, endrigs or other margins of fields in which crops are growing, and "crops" means plants which are cultivated for agricultural, forestry or commercial purposes."
So again the major acrimony has been avoided although there is likely to be the odd localised dispute about field margins and crop designations.
Another area of concern was the amount of curtilage deemed off-limits by a householder or landowner. Curtilage is basically the normal surrounds of a house or farm - the garden, yard, driveway etc - the obviously-private bit. This has never been formally nailed down to an actual distance figure - how could it be, when houses vary so much in size and shape? There had been worries that the new draft of the bill would go along with lobbying to define curtilage as, say, 50 yards, when suddenly there would be scope for trouble in a situation where someone has a public path or piece of hillside running past the end of their 40-yard garden.
No figure has been specified however, so again it looks like nothing much will change from the current situation. The only use of the word curtilage comes in the "The land in respect of which access rights are not exercisable" section mentioned above, where access right are said not to apply to land which "forms the curtilage of a building which is not a house or of a group of buildings none of which is a house".
The situation concerning golf courses remains unclear, as the bill includes this: "Conduct excluded from access rights: (e) being, for recreational purposes, on land which is a golf course", which seems to imply that the numerous folk who routinely and inoffensively stroll along the edge of fairways on what are, after all, massive chunks of land might in future find themselves in trouble. The jury is out on that one at present however, just as it is over potential problems with sledging on snow-covered golf courses.
Generally, at first glance, this looks to be a much healthier and more acceptable bill than the earlier doomsday version. A discussion on Radio Scotland at lunchtime yesterday was notable for its across-the-board happiness with the basics being put in place here and the panel included reps from the Scottish Landowners' Federation, Highland Council, the Ramblers and the National Farmers' Union along with land reform campaigner Andy Wightman.
Clearly these different groupings are never going to achieve unanimity but at least what we now have is unlikely to provoke the fierce dissent of the earlier version. The keynote statement early in the bill is of great help in clarifying areas of potential dispute and difficulty: "The exercise of access rights does not of itself constitute trespass." (Part 1, chapter 1, section 5, clause 1)
The belief that the foot and mouth problems came at a "good" time for the overall access debate (if I may be allowed to suggest something so Jo Moore-ish) also seems to have been borne out, as the deputy first minister Jim Wallace in a briefing this morning particularly mentioned the unhelpful problems caused by farmers and landowners who had over-reached their powers with regard to access closures during the FMD crisis.
There are other aspects to the bill that will need to be looked at another time - the Scottish outdoor access code, for instance, and the core paths plan - "It is the duty of the local authority, not later than two years after the coming into force of this section, to draw up a plan for a system of paths (core paths) sufficient for the purpose of giving the public reasonable access throughout their area."
Then there is this, which might mark the end of the road for the notorious Invervar gate in Glen Lyon: "Prohibition signs, obstructions, dangerous impediments etc: The owner of land in respect of which access rights are exercisable shall not, for the purpose or for the main purpose of preventing or deterring any person entitled to exercise these rights from doing so: (a) put up any sign or notice; (b) put up any fence or wall, or plant, grow or permit to grow any hedge, tree or other vegetation."
Similarly, the crying need for a compulsorily-purchased car park and hill access path at Lawers village could be greatly aided by this: "Acquisition by local authority of land to enable or facilitate exercise of access rights: (1) Where it appears to the local authority to be necessary or expedient for the purpose of enabling or facilitating the exercise of access rights in respect of any land to which this section applies that the land be acquired by them, the authority may: (a) acquire it by agreement (whether by purchase, feu, lease or excambion); or (b) with the consent of Ministers, acquire it compulsorily."
So what happens next? Well, once the initial phase of consultation closed in June, the draft bill fell into the hands of something known as the Justice 2 committee. The rural development and local government committees are also likely to become involved, especially during the forthcoming "stage-one scrutiny" phase. The bill was formally "introduced" to the parliament on 27 November and we have under four weeks from that date to submit written comments on the new version.
Another page of the parliament website - www.scottish.parliament.uk/whats_happening reports that: "Interested individuals and organisations are invited to submit written evidence to the Committee. The closing date for evidence is Friday 21 December 2001. The Committees expect to take any oral evidence on the Bill during January."
Submissions should primarily focus on the changes made by the Scottish Executive following the earlier consultation, while "Those responding should note that Committees already have access to all the responses to the Executive's consultation exercise." In other words, to draw a parallel with the employment world, there's no need to write making the same points as before, as your earlier letter has been retained on file. Do however write with new concerns and fine-tunings.
The committee is asking that new evidence or comments should ideally be typewritten and run to no more than four pages. The preferred method of submission is by email, preferably as a Word 97 document but postal submissions will of course be accepted as well. The addresses for sending comments are: justice.committee@scottish.parliament.uk or longhand to Fiona Groves, Assistant Clerk to the Justice 2 Committee, Room 3.10 Committee Chambers, George IV Bridge, Edinburgh EH99 1SP.
More on all this in due course as the bureaucratic dust settles but finally for now a word should be said about how yesterday's massive cabinet reshuffle might affect things. Both the justice minister Jim Wallace and former deputy Iain Gray have been heavily involved in shaping the bill but now Gray has been promoted to minister for social justice. Chances are this makes the bill more rather than less likely to go through pretty much as it stands, as Gray clearly has more clout than he did at the start of the week.
At least some environment matters now seem to come under the remit of Mike Watson (whose full title is the snappy "minister responsible for tourism, sport, culture, and the arts, the built heritage, architecture, Historic Scotland, lottery funding and Gaelic"). While it remains to be seen how amenable Watson will be to the recreation land-using community as a whole, there's no doubt that he is not afraid of wading in for a fight with the more "establishment" end of the country set, as it was he who proposed the legislation to ban hunting with dogs in Scotland.
What with the reshuffle and the new version of the bill, a lot has happened in Scottish politics these past couple of days and it will all take time to digest. But, so far, things look promising for those at the access-friendly end of the land-use spectrum.
Dave Hewitt
29/11/2001
Late news: The Scottish Executive site now has a much more concise version of the changes in its news section (read it here).
