Dave Hewitt agrees that the Land Reform (Scotland) Bill paves the way for the future of access but warns that without action on the ground it could be worthless.
The access-related organisations have been upbeat about the final shape of the Land Reform (Scotland) Bill, and rightly so. The Mountaineering Council for Scotland, for instance, used its press release to exude pleasure that "the conclusion has finally secured in statutory law what we have always believed we had in common law, namely a right of access to land and water in Scotland for recreational enjoyment."
More specifically, MCofS vice-president John Mackenzie said, "We hope that the passing of this legislation will very quickly lead to the removal of the many unwelcoming, misleading and intimidatory signs that we find on the Scottish hills, and that with local authority involvement there can be swift resolution of some notorious access problems."
As for the Ramblers' Association Scotland, their chair Alison Mitchell has spoken of the bill "[laying] the framework for new access arrangements, securing both our traditional rights and freedoms as well as providing a modern system for protecting paths and developing new path networks, which will last for decades." And echoing the MCofS in using far more strident language than that normally found in a press release, she added, "Already we see local landowners and farmers sitting down with local community groups to plan path networks around villages and towns. Only a few loud voices are left threatening action in the European Court. Meanwhile they fight amongst themselves, like ferrets in a sack, trying to decide who speaks for a handful of rich landowners."
The bill really only firms up what we have already got - confirming and clarifying rather than actively creating. From the point of view of walkers, climbers and the like, little will materially change come next March when the Land Reform (Scotland) Bill receives the Royal Assent and transforms into the Land Reform (Scotland) Act. As the MCofS press release says, "In the meantime, access to our mountains and crags should carry on very much as before, with our common law right of access being the basis for our activities until the statutory right is fully implemented."
It's a pudding, though, and it will need proofing come the time. Quite what practical changes might come about will only really be seen - or not seen - when it's crisis time again. There has been occasional comment that the access bill as now passed is "the silver lining" to the foot and mouth cloud. In other words, the 2001 outbreak saw so much selfish stupidity and illegal obstruction in various sectors of the landowning and smallholding communities (as well as from some supposedly "walker-friendly" agencies, shame on them) that the eventual bill acquired an edge and a stridency it might otherwise have lacked.
I know from direct experience - and reported here at the time - that the civil servants in Edinburgh became more and more exasperated at the anti-democratic arrogance of the more rural-oriented councils in relation to the Comeback Code and its associated re-opening policies. There is no doubt that out of this came a determination, at Executive level, to ensure that the middle-managing councils got the democratic drift next time.
I can see this "silver lining" argument and I do hope it's borne out by events should there be another FMD outbreak (and the pessimist/realist in me thinks that if we make it to the year 2010 without another dose of FMD then it will be a surprise). I remain to be convinced however that, even once the access legislation hits the statute book next March, things will be much different next time round. More likely is that there will again be widespread ignorance of, and indifference to, the legal situation - and if FMD broke out in, say, Dorset in October 2004, then the Hill Closed signs would surely again sprout across Perthshire, Argyll and the like quicker than you could say Ross Finnie Looks Like Captain Mainwaring.
The bill/act ought to shift the balance towards a presumption in favour of access but that kind of phraseology was being bandied about by the Edinburgh politicos throughout summer and autumn 2001 and was wilfully ignored by the landowner-friendly councils. There will be more oomph behind the access-presumption come March 2004 but it would still need officials to actively tell the Keep-Outers that what they're doing is not only undemocratic but also illegal, and would be pursued through the courts if need be.
The area where I'm more hopeful that progress can be made - although again it needs support from those in positions of power - is in the specific cases of obstruction by landowners who, whether through ignorance or intent, believe they can block walkers from paths and peaks. John Mackenzie is absolutely right to be bullish about "the many unwelcoming, misleading and intimidatory signs" and the "notorious access problems", and it will be interesting (and, dare I say it, invigorating) to see what happens come March 2004.
I suspect we all know the names of some of the "notorious" cases, but let's remind ourselves just in case. There is the gate blocking access to the northern Glen Lyon Munros at Invervar (yes, Mr Riddell of North Chesthill Estate, we're still watching you). And Cawdor estate in the north-east, where there has long been a curiously low number of raptors on the moors and, coincidentally, a curious tendency for walkers to be halted and hassled within minutes of their setting off for walks on those self-same moors.
Then there are the people who periodically erect intimidating signs and insurmountable fences on the east side of Tinto. The farmer (an economic migrant up from Yorkshire, I believe) who has made a morass and a mess of an old approach path to the fine viewpoint of Pressendye on Donside. The tenants at Glenrath Farm south of Peebles who really ought to be spoken to now, never mind next March, about the "All vehicles and personnel must be disinfected before entering" sign at the start of the obvious route on to what they evidently think is "their" hill.
And mention of these ongoing problems - none of which have, to my knowledge, been tackled in any serious way by the relevant authorities - brings me to what remains, in many people's eyes, easily the most serious access problem in Scotland - Deephope. Regular readers will recall that I wrote about the situation here last April (read it here) and things have moved on considerably. There has long (we're talking since at least the mid-1990s, which is when I first became aware of it) been a history of walkers verbally abused and physically manhandled by a man known variously as James, Iain or John Irvine. He lives alongside the forestry track close to the bridge across the Tima Water, just south of Ettrick village.
In February 2002 Irvine was convicted at Selkirk Sheriff Court of a breach of the peace and the assault of a woman who had been walking along the track with her husband and their three young children in June 2001. Irvine initially denied the charges but later pled guilty. He was fined £350 and the sheriff, in sentencing, described his behaviour as "what you get from youths of 19 years". (Irvine is in his sixties.)
That much was reported in my earlier piece. What I didn't know at the time was that the owner of the nearby Angecroft campsite, Kevin Newton - who had seen the assault and who appeared as a witness for the prosecution - says that Irvine approached him as they left the court and vowed to exact revenge. Nothing much then happened for six months - to the extent that Newton had almost forgotten about the incident - but in July 2002 the local police paid him a visit. The reason was a complaint from Irvine that Newton had attempted to run him down in his car. A charge was duly issued - initially of dangerous driving with the intent of hitting Irvine. This was later reduced to careless driving without due care and attention, but the deliberate targeting of Irvine remained in the frame.
Newton is both dismayed and astonished at this - he says it is "preposterous to say the least" and is confident that witnesses can prove he was "several miles away on the back of a horse" at the time in question. The pleading diet took place on 4 February and the full hearing will follow in due course.
There is much more that could be said here (extraordinary stories involving, for instance, hot-air-ballooning women in Edwardian dress having their day ruined simply because they came down in one of the country's least friendly fields), but a judicial process is underway and various details and opinions must be placed to one side for the time being. Suffice it to say that this column will continue to monitor developments.
The more general point is that this kind of problem should, at least in part, be dealt with by those bodies whose stated aims include maintaining the legal right of access to hills, glens, forests etc. It worries me more than a little that while the new access bill/act is being talked up, long-running and seriously acrimonious situations such as that at Deephope are being allowed to continue without intervention or (for the most part) media coverage. This despite numerous alleged incidents which, if proven, would be illegal under existing legislation, never mind the imminent new act. There has to be a concern that such situations will continue to drift no matter how strident the words in the statute book, because the on-the-ground will to rectify them simply isn't there.
To some extent Deephope has received little attention because it is neither fish nor fowl. The area is one of small afforested hills rather than craggy mountains, so the MCofS (which tends to seen as dealing mainly with crags or 600m-plus hills) has not really latched on to it. Similarly, although the track where the assault and numerous other alleged incidents have taken place is legally a right of way - and hence very much in the Ramblers' and the Scottish Rights of Way and Access Society's remits - it's also a track through a forest and seems to have been treated as a forestry matter. The Forestry Commission, for its part, has long been aware of the difficulty - I received a resigned/knowing email from one of the Borders FC staff after my earlier piece - and has put in a diversion to bypass the crucial chunk of track. This is well intended but rather than solving the problem it has given ground to Irvine - he has won a victory here and no doubt feels empowered.
The 498m hill above Deephope, Law Kneis, is not on many people's tick lists. Those happy few working through Alan Dawson's Marilyns list, or those busy with Eric Yeaman's even more obscure category, will turn to it in due course. But for most people it doesn't feature. Were the Deephope situation occurring beneath a Munro or a Corbett however, or on the natural approach route to a substantial crag, or were the Southern Upland Way to use the track, then the situation would have been dealt with, in some way or other, long ago. But the popularity or significance of the area ought not to matter: access is access, and laws that apply in one part of Scotland apply in every other part. There's no reason why a situation should be allowed to fester just because the location - be it Deephope or anywhere else - is a backwater rather than a honeypot.
Anyway, we'll see. I'm no expert in these matters, but it probably falls to the Ramblers' Association Scotland to have a proper look at Deephope. Their man Dave Morris has already shown himself to be one of the most strident and sensible voices with regard to access, and he could do worse than to take a stroll up the notorious track one day - although he should probably take a friend and a camcorder. If not the Ramblers, then the Scottish Rights of Way and Access Society, as the Deephope track is there in black and white as Route 31, Ettrick to Hawick, in their Book of Indisputable Routes otherwise known as Scottish Hill Tracks.
But whoever looks into this and takes it on, the point is that while it's fine to enthuse in the abstract about bills and acts and unequivocal rights to roam, the optimism needs to be nailed down with specific, site-related, targeted work. Yes, it's good to be chuffed about the access bill, and we can allow ourselves, as a hillgoing community, five self-congratulatory minutes to put our feet up and admire the view.
After that, though, there's work to be done - because not to work now would be complacent, would risk finding ourselves stuck with a toothless, easily brushed aside piece of legislation. The new bill has to be practical, has to pose a threat to those maverick land managers who regard themselves not just as above the law but on a different planet from it entirely. And if we allow their attitudes and behaviour to continue unchallenged, be it under the current law or the shiny new one, then we have only ourselves to blame.
See www.mountaineering-scotland.org.uk and www.ramblers.org.uk/scotland for more background.
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Oh, on happier matters, my previous column mentioned a short-wave radioman as having been spotted atop Ben Cleuch in the wonderful early-February weather. Thanks to Richard Newstead for tipping me off about a picture of these activities on the Summits On The Air website. See www.sota.org.uk
Dave Hewitt
20/2/2003
You can contact Dave at Dave.Hewitt@dial.pipex.com
