Although initial perusal showed a much improved Land Reform (Scotland) Bill, Dave Hewitt says there are still concerns for those who make their living from the hills, organised outings and others who just enjoy a wander in the dark to clear the head.
The stour has gradually settled after last week's initial flurry of activity on the Scottish access legislation and the general feeling within the walking/climbing community seems to be one of cautious optimism.
The new version of the bill is clearly much better than the out-for-consultation draft from the early part of the year and most of the completely bonkers aspects of that earlier proposal have now, thankfully, vanished. The new version isn't ideal, though and concern has focused on two particular areas of the bill, both of which, as they stand, could seriously endanger existing access rights if manipulated by access-unfriendly landowners or politicians.
The first of the problem clause crops up in section 9 of the bill, a section entitled "Conduct excluded from access rights". Here it says, in subsection (1)(b)(iii), "The conduct which is within this section is: conduct within subsection (2) below".
Yes, very good - it's all in this kind of user-unfriendly subclause-speak, as was mentioned in last week's column. What subsection (2) says is, however, somewhat clearer: "The conduct referred to in subsection (1)(b)(iii) above is any of the following: (a) conducting a business or other activity which is carried on commercially or for profit or any part of such a business or activity".
In other words, if you're going to earn any money for going on to a hill, then you can wave goodbye to your access rights and instead get out your wallet. The people who this most obviously affect are the guides, be they technical climbing guides or those who work for the walking/holidaying companies that shepherd folk along the West Highland Way or up some popular hill.
Not all guiding companies can be easily categorised, mind you - Stirling-based C-n-Do staff spend a lot of time leading punters up the Munros and Corbetts but they also stress the skill-teaching aspects, be it specific training sessions for axe skills in winter, or the underlying hillcraft that accompanies even the most mundane day spent with someone more experienced than yourself.
I asked Dorothy Breckenridge of C-n-Do what she made of clause 9 and her reaction was a mixture of anger, indignation and bamboozlement. "Existing historical access taken by individuals has always applied to group use," Breckenridge says, "without ever trying to go down the impractical route of splitting hairs of what is a group, when is it educational/commercial/charitable, etc. Historically, if additional facilities are provided by the landowner - vehicle access, car parking and toilets for a major event, marquees for a function, etc - then a charge has been made. Access has never been charged for.
"Historically, every business/organisation connected to people having access to the countryside - outdoor activity providers, authors, journalists, teachers, hoteliers, photographers, B&Bs, outdoor retailers - pays taxes to central government to fund the support of the rural economy and hence access to the countryside, well in excess of £500 million last year.
"Leaders/instructors have the additional responsibility, which they take seriously, to provide safety management, environmental and countryside awareness, safety and outdoor education instruction - how to "put something back into the countryside". This form of access has been essential to enable many to enjoy the countryside while learning the skills necessary to become safety-conscious, independent recreationalists should they so wish. It has also enabled many to take that first step which opens the door for a lifetime's healthy enjoyment in the outdoors. This form of access is what is under threat.
"The clause is open for conflict and allows for totally unreasonable interpretation leading to the abuse and infringement of existing traditional practices. It should be taken out of the bill and the additional historical responsibilities for group leaders/organisers strengthened in the (Access) Code if needs be. Exclusions would lead to major safety implications, the further loss of outdoor education provision in its widest sense and the serious potential for loss to the rural economy of a large part of the education/recreation/tourism sector, never mind the loss of outdoor/educational opportunities for many needy sectors of society. It could well lead to Scotland becoming the one European country where group access has to be paid for."
Breckenridge also asks about the whereabouts of the new Access Code, a major feature of the proposed legislation, "We have been asked to comment on the bill with no new code - a code of which no one has had sight, nor seems likely to until after the Justice 2 (committee) deadline. How can this be explained as joined-up government?"
There speaks an angry woman and understandably so - all the guiding operators, big and small, have suffered greatly of late due to the (often illegal and inappropriate) foot and mouth-related restrictions - and now this. And what about the many others, as Breckenridge points out, who make at least part of their living from going on the hill? Teachers taking parties of schoolkids on the hill, for instance, might suddenly find themselves in the logistical nightmare of being turned back halfway up something.
This isn't as unlikely as it sounds. There is already a sentence in the longwinded estate notice at Invervar in Glen Lyon (or at least there was last time I was there) which argues that "organised groups" are not supposed to venture on these hills without formal permission. But what is an "organised group" anyway? Is no one allowed to invite a party of friends along for a Munro completion on Carn Mairg, for instance?
And what about photographers and writers? There's an extra level of absurdity here, if my own experience and practice is anything to go by, in that such people rarely know in advance whether any particular outing might end up producing a marketable picture or forming the basis of a viable article. Very occasionally I set off uphill knowing that I'm "covering" that day's events - Charlie Campbell's 48-day Munro finish on Ben Hope two summers ago was one example, as was Eddie Dealtry's monsoon-like Corbett/Graham finish in the wet west just a few months ago. But much more frequently I just go out for a bit of exercise and headspace and something then happens which eventually (sometimes years later) worms its way into a column somewhere.
Here's an example. Last Friday I marched up into the Ochils just before nightfall, hoping that the day's rain and cloud would clear and allow a moonlit traverse. I needed to get out for a few hours and neither the conditions nor even the time of day/night really mattered. I'd had a sustained spell of feeling tied down with stuff, most notably the hassles that accompany moving house, plus more 5am sorties downstairs than I really need to help nurse the cat after it had suffered a stroke. Anyway, the details aren't really relevant - I just really really needed to get out for a few hours, a feeling that is doubtless familiar to any outdoor enthusiast.
In the event the moon went awol, conditions worsened, the rain came on and the cloud clamped down to such an extent that I almost contrived to steer through the ten-metre-wide gap between the Ben Cleuch summit cairn and its adjacent fence without seeing either, so dark and foul was it up top. This was perversely memorable, though and precisely the kind of thing likely to be passed on to a reading public in due course. In fact I've done it there, just a sentence ago, in a piece for which I'll eventually receive a bit of dosh. So does that mean that under the proposed legislation I shouldn&£8217;t have been on the Ochils last Friday night, at least not without having asked someone first? Don't be silly. It was precisely this kind of must-do worldly-ism that I went uphill to get away from in the first place.
Exactly the same applies to mountain photographers - who are, if anything, even more opportunistic than their writing colleagues. Photographers habitually hump a camera or two up the steepest of slopes, just in case the light suddenly comes good and they're able to fire off a film or two. More often than not they cart the cameras down again unused. Are they now to be denied their basic access rights because of the sporadically commercial nature of what they do, because their lives don't have neatly-ordered divisions between business and leisure? Is there going to be some bureaucratic jobsworth stationed at the foot of the hill asking if they've got anything to declare? Of course not.
The second part of the bill still needing serious work appears in section 11: "(The) power to exempt particular land and exclude particular conduct from access rights". This includes the following subsections: "(1) The local authority may (whether on application made to them or not) by order under this section made in respect of a particular area of land specified in the order: (a) exempt it from the access rights which would otherwise be exercisable in respect of it; (b) exclude from the access rights which are exercisable in respect of it the carrying on of such activities as may be specified in the order; (c) restrict the access rights which are so exercisable to the carrying out of such activities as may be specified in the order; or (d) exempt it from the exercise of access rights or exclude from them the carrying on of such activities during such times (which may include periods defined as the "hours of darkness") as are so specified."
The bill continues: "(2) Before making an order, the local authority shall: (a) consult the owner of the land to which it would relate and such other persons as they think appropriate; and (b) give public notice of the intended effect of the proposed order, inviting objections to be sent to them within such reasonable time as is specified in the notice; and shall consider any such objections and any other representations made to them. (3) An order shall specify whether it has effect for a definite period or indefinitely. (4) An order which would have effect for a period of 30 days or longer requires confirmation by Ministers." The section ends by stating the various legal and statutory documents that would be invoked in such circumstances.
Again this is all too wordy to take in at one glance, so it's best to start by picking out the part that links in with the no-moon story told above. In last week's column I suggested that the previous draft's clauses about restricting access during nighttime had been ditched but this isn't (unfortunately) the case.
In my haste to search for the word "night" (which doesn't appear), I'd overlooked the phrase "hours of darkness" - thanks to Jonathan Foote and Ken Stewart for pointing this out. So this absurdity is still heading for the statute books, even though people have been gaining enormous benefit and pleasure from wandering and camping in the hills at night for generations. In winter it's often essential to start and finish the day's outing in the dark, to maximise the light available for the potentially tricky bits up top.
At least this part of the proposal has changed somewhat from the first version - now the powers of restriction would be held by the local authority and not by the landowner. But while some local authorities operate walker/access-friendly policies and practices, others are known to be less enlightened. Argyll and Bute springs particularly to mind here, with Perth and Kinross not far behind - they tend to talk a good policy while actually doing very little to enforce it - witness Glen Lyon again.
The former Mountaineering Council of Scotland president Nick Kempe has had some interesting things to say on this during the past couple of days and he merits being quoted here at some length. Kempe is a vastly experienced and very able climber and hill-wanderer and a great worrier about the hills in the best sense of that phrase. He, like Dorothy Breckenridge, is well aware that should any anti-access clauses slip through in the next crucial period, then we might well be stuck with them for many years to come.
"I think most of the bill is a vast improvement on the previous version," Kempe says, "but Section 11 is almost word-for-word the same as Section 10 of the first version which we all objected to so much. The heading and number of paragraphs are all exactly the same and the only differences are - in subsection 1 the following insert has been made: "(whether on application made to them or not" - the effect of which is to clarify that people can either apply for an order exempting land or excluding conduct from access rights OR the local authority can act on its own initiative.
"In subsection 2, "and shall consider any such objections and other representations made to them" is added. The effect is to clarify that local authorities should not just invite objections to exemptions and exclusions, but also to consider them. And subsection 5 has been divided into (a) and (b) with (b) being new. Its "any other representations made to them" has the effect that ministers should be sent copies of not only objections but other representations made to them (it could be letters of support).
"I do not think any of these alterations materially alter this section of the bill," Kempe continues, "and it remains as before. The question arises as to why, when one of the primary concerns about the previous version was the power given to local authorities, are we not equally concerned now?
"While this section is the same there are significant differences in context. The specific powers given to local authorities to exclude individuals have all gone (as has criminalisation of trespass etc), so in this version if land or conduct is exempted by local authorities all they can do to enforce this is resort to interdict, as per the existing legal position.
"I think it is an extremely poor legal principle that anyone should be given a power without any attempt to define when it should be used. There is a clear contrast between section 11 and section 12 which is on bye-laws and which clearly defines when these can be made - the preservation of order, the prevention of damage, the prevention of nuisance or danger, the preservation and improvement of amenity. If a local authority tries to make a bye-law for another reason, you could go to the courts and get an interdict to prevent them acting beyond their powers. A local authority can however exempt land or exclude types of conduct under section 11 without any legal sanction whatsoever.
"Also, without any specification of when or why land or conduct might be exempted, it would be possible for local authorities to exempt huge tracts of land or all types of conduct from the access rights so long as it was for under 30 days. This is totally contrary to the whole spirit of the Act. And without criteria for exemptions/exclusions it is difficult to see what land or conduct civil servants believe should be exempted or excluded.
"In my experience what other people would see this section being used for are things we would likely strongly object to. If the civil servants have nothing in mind, why not abolish this section and just let local authorities use bye-laws? If the civil servants do have things in mind not covered by other legislation, let them tell us what they are and if reasonable lay out the criteria for when they might be used.
"It could be argued that local authorities will never act in such a way, but I do not think this is true having witnessed Glasgow City Council exclude people from Pollok Park for months after the area was declared free of foot and mouth." (Witness also any number of similar examples from councils across the land - again Argyll and Bute council merits being cited here.) And consider what local authorities will do when every deer management group applies for exclusion for 29 days in the autumn on the grounds that stalking is dangerous and that if the authority does not do anything then the landowner will hold them accountable for any deaths.
"It could be argued that even if local authorities exempt or exclude land it won't affect people who know they could only be kept off by interdict. While this may be true, a main point of access legislation is to help those who feel less confident. If a landowner gets an exemption or an exclusion that presumably will enable them to put up whatever signs they want. A sign saying "This land is exempt from the right of access from 20 September to 18 October" will have more force than any sign at present because people will assume where there is not a right, there they cannot go."
So we have two hefty areas of concern - and there may be more, in relation to access to recently forested areas, for example. Time is already getting very short for feeding comments and concerns into the parliamentary process, as the window closes again on 21 December.
Comments should be submitted by email (preferably as a Word 97 document but don't let that deter you if you haven't invested in Bill Gates' upgrades) to justice.committee@scottish.parliament.uk Written postal submissions should go to: Fiona Groves, Assistant Clerk to the Justice 2 Committee, Room 3.10 Committee Chambers, George IV Bridge, Edinburgh EH99 1SP.
And do keep feeding thoughts and reaction back to this column as well please - the address, as ever, is Dave.Hewitt@dial.pipex.com
Oh, and the cat's a lot better now, in case you were wondering.
Dave Hewitt
6/12/2001
