Land Reform (Scotland) Bill: Stage 1

I identified the problem when I became a main board member of Scottish Natural Heritage in 1992. We have consistently recommended a full-scale multidisciplinary review of the law, similar to that which the Scottish Law Commission carried out of the law of the foreshore.Basically, the position is as stated by Tom Johnston MP in 1942. He said:"Any member of the public is at liberty to walk over any land in Scotland provided he does so without damage to crops or fences and does not commit a breach of the various Poaching Acts. This applies to the whole country with the exception of private gardens or grounds which form the curtilage of a dwelling house or other private residence."He also said: "there is no law of trespass in Scotland."

Lord Reed also said that in a lecture at Aberdeen University. That basic principle applies in England and Scotland. In 1979, Sir Robert Megarry said the same thing. It means that Scotland is not a place where everything is forbidden except what is permitted; it is a place where everything is permitted except what is forbidden.

The freedoms exist, but the bill would be beneficial for the reason that you state: the situation has become confused and there is not agreement. The same reason for having legislation applies as in Norway, where there was an act that said: "The Outdoor Recreation Act ensures this public right of access and thus confirms a right of common law with a long tradition in Norway."That is what the purpose of the bill should be. It is necessary because the situation is so confused.

The meaning of the term "no law of trespass" is that there is no reason why someone should not go on to land; it is harmless and has no particular legal effect, as Tom Johnston said. Lord President Clyde said that trespass is not a legal term. Therefore, I agree with you.

Where they exist, the rights of way will continue, so the two rights will run in parallel. The rights of way will be beneficial because they apply all the time; they constitute an important right, which overrides other rights, such as rights of property.

That is correct. However, Lord Reed's statement that everything is permitted except what is forbidden also applies to the landowner. Although the landowner might not have any legal backing, he is not prevented from trying to limit access. The value of the right of way is that it overrides the landowner's ability to interrupt access. That is why the right of way is important where there is landowner opposition. In general, however, there is no landowner opposition.

That is correct. That was the position in the 19th century, when access to the Highlands was closed. There was no legal provision for that, but the landowner was able to do it as a matter of fact.

The bill is beneficial. It adds to legal rights in various areas—for example, to the rights of people on horses and, to some extent, on water. However, existing rights—if they were agreed on—would be as strong in relation to walking over land as what is proposed in the bill.

That is why we need the multidisciplinary study. I do not think that the bill gives more rights. Tom Johnston was correct to say that the existing liberty is very strong. My work on the LINK access research project showed how strong the existing rights are. However, those rights can be interrupted. The effect of the bill will be to stop them being interrupted except in agreed circumstances.

That is one reason, but Scottish landowners have generally accepted the Tom Johnston view. Some overseas landowners, such as those at Letterewe, share that concept, but it is correct that the traditional understanding has been eroded. However, many landowners are supportive.

Section 5(3) provides that the bill does not interfere with the common-law rights. The question is: what is the nature of the common-law rights? The problem is that there are two Government positions: the 1959 position, which is that trespass is not a civil wrong, and the 1967 position, which is that trespass is a civil wrong. It is unprecedented that there should be two Government positions on the same issue.In some areas, the bill interrupts the common-law rights, as the Scottish Law Commission has highlighted. For example, it is obviously necessary to preserve the curtilage and the security of Balmoral and the Queen's private estate; however, that is an extensive area. Common-law rights will run where the statutory right does not. There is a major problem of overlap between the two but, provided that the remedies under the statute are not stronger than the remedies under common law, there is no reason why the bill should not work quite well.

The draft bill had many remedies that were objectionable. Fortunately, the present version of the bill has no remedies other than the common-law remedies of interdict. As long as that continues, that is fine.Section 11 provides that land can be exempted. One presumes that, where land is taken out of the right of access, the common-law right would still continue. That is where the problems of overlap arise.

There is a confusion, as paragraph 6 of the Scottish Law Commission's submission clearly says:"To the extent that the rights overlapped, the public would be entitled to elect which category of right they were exercising and therefore whether it was regulated by the statutory scheme or not."The way in which the bill has been drawn up—creating a right of access but not interfering with common-law rights—means that the two will run in parallel. There is no great harm in that, as long as the statutory right is not weaker than the common-law right.

It would not be part of criminal law. Byelaws can have criminal effect, but I do not think that the rest of the bill will have any criminal impact. Many criminal provisions already exist, particularly to do with aggravated trespass and the protection of wildlife. Those provisions will continue, but the bill as drafted will create nothing that will add to the criminal deterrent to access. The draft version, of course, added a great deal, which is why it was so objectionable and so great a departure from Scottish traditions.

Traditionally, there have not been many disputes in the main mountain areas. If such a situation arose and the person concerned felt that the land manager was acting reasonably, I presume that he would agree with the land manager. If the person felt that the land manager was acting unreasonably, there would be a problem. If that problem went to the stage of either of the people becoming hostile, there could be a breach of the peace. The police can come if there is a breach of the peace or malicious mischief, but they cannot come if the case is simply one of someone being harmlessly on land and the landowner not liking that, for whatever reason.

A breach of the peace would be for the police to deal with. The police were consulted over whether there should be increased criminality of trespass after Michael Fagan broke into Buckingham Palace in 1982. At that time, the Scottish Police Federation said that it did not need increased powers because the breach of the peace legislation in Scotland was sufficiently flexible to allow the police to deal with any situation that had become a real problem. It would appear, therefore, that the police have enough powers already. However, if the situation is not to reach the stage at which there is a breach of the peace, both sides will have to act responsibly.

The police and the rangers need to be clear about the problems that involve a breach of the peace and the problems that do not. Information on that has to be published. If someone is harmlessly on land, they are free to stay there under existing common law. That is what Tom Johnston says. There is no reason why a landowner should object to someone being harmlessly on the land. If the person is not there harmlessly, that could be a breach of the peace. The issue is difficult, particularly on the edges of towns. The experience of the past 30 or 40 years has shown that there have been few such problems. In 1961, the Scottish Landowners Federation proposed changes to the law of trespass. The Government said that it would be willing to consider change if the federation could produce examples of what the problems were. The federation did a trawl of all its members but was unable to come up with any examples. If something was an on-going problem, it could be discussed in the access forum.

Yes. The experience of the access forum has been beneficial, not because there have not been disagreements, but because there has been an opportunity to discuss things. It is regrettable that the bill contains no provision for a national access forum. There is such a forum in England. It is strange that an idea that was proposed in Scotland, where there has been much experience of the issue over the past five years, has been omitted from the bill. I am a strong believer in the benefits of having an access forum. The experience in Europe has shown that such consultative arrangements are extremely beneficial.

That is a serious problem. It has not arisen under the common law because, in general, common law has been commercial. There are drove roads from Shetland to London; Scotland is criss-crossed with old drove roads. Miners have had to get to work. All that activity is commercial. There has never been a distinction. However, if there is an event or something that involves placing facilities on the land, it is reasonable that the landowner should receive some benefit. That is absolutely fair. In the past, there has never been a distinction between someone doing something commercially or doing it for himself. Once again, the Norwegians have the right answer. The leaflet entitled "Free access to the Norwegian countryside" shows that it does not matter whether one is acting as a guide or as a private individual. That is the case throughout Europe. All that the leaflet says in relation to commercial activity is that there is a question as to whether one requires a licence to hunt or fish. That is plainly commercial and is okay.The Parliament should not try to make the distinction, as that would be a cause of many problems in the future and would be adverse to tourism. For example, someone who was a photographer and wanted access could be seen to be acting commercially. A distinction would give grounds for the landowner to ask people whether they were on the land for commercial reasons. It would make the right of access feel insecure. The purpose of the bill is to make people feel that their access rights are quite clear. If someone asks you whether you are taking photographs commercially or whether you are a guide, that conflicts with the fundamental purpose of the bill and is objectionable.

As I said, I think the provision should be limited to events that need to be planned and publicised and to which a number of people and spectators are coming. There might be a need for a form of payment for such an event, because it uses the land. The ordinary guide does not use the land. Although the landowner has exclusive rights to the use of the land, I do not think that someone walking over the land uses it in the same sense. If someone holds an event, that event will displace whatever the landowner might want to do on the land at that time. If someone grows potatoes, he stops the landowner from growing potatoes. If a mountain guide simply climbs a cliff that the landowner is not using, I do not see that that interferes with the landowner's exclusive rights to the use of the land. The key issue is whether the commercial use disturbs the landowner's use of the land.

Actual use. The idea has not been worked on in sufficient depth but I think that the actual use of the land is the key issue.

No. There is no distinction to make. If there was a problem in a particularly sensitive area, a local authority byelaw might address it. In general, people are not concerned. There are provisions for keeping people away from houses and so that should be sufficient.As the member knows, the matter was debated during the passage of the Countryside and Rights of Way Bill down south. It was decided that the distinction could not be made and no special provision was made for night access.

It depends upon the existing powers of byelaw. In principle, it would be a serious intrusion into existing common-law freedoms.

Yes, I think so. I do not think that there is any question anywhere, including in other countries, of mountain guides being restricted in the way that section 9(2)(a) could restrict them. As the member probably knows, from 1850 to about 1920, at the Sligachan Hotel on the Isle of Skye, up to 70 people would gather at a time with mountain guides, who were mostly paid local people. There was no question of any restriction of access or of their being treated differently.It is unheard of for mountain guides to be treated differently. I have never heard of an example of that, except perhaps in high Himalayan peaks where royalties are charged for climbing Everest and so on. I have never seen that anywhere else. The Norwegians concentrate on commercial activities such as hunting and fishing. Landowners' income from such activities should be protected. That should not apply to somebody who works in a commercial or in a private sense—or maybe a bit of both—if his activity is the same whether it is commercial or private.

The bill can be interpreted widely, in the sense that anyone who is doing something for money could be questioned about whether he or she is on the land commercially. That could extend to mountain guides, tourist guides, photographers or anyone else. Someone who goes to an area to see how they would describe it in a book could, technically, be engaged in commercial activity. There is an enormous field of people who would have to be stopped and interrogated, which is where the problem arises. Such provisions are not in legislation in other countries, other than in England. It is a serious difficulty.

It does not do any harm to have it, but it really only repeats what is common sense, as you say. It would not do any harm to have something about big events just for clarification, but that should probably be in the outdoor access code. The key point is the reference to access being responsible on both sides. The definition of responsibility should be in the code and could be part of the arrangements for carrying out events. All that would be part of the code, which should be agreed between landowners and the organisations concerned. The definition could, and perhaps should, be left out of the bill. To the extent that it is needed, it should be in the code.

No. Our position is as stated by Tom Johnston: there should be liberty of access to all land in Scotland, except to curtilage.The provision that says that access rights must be exercised responsibly means that an individual must take account of the circumstances in which they exercise their right of access. There does not need to be a distinction. The matter is for the code. The same right should apply to different circumstances, but it should be exercised differently, as appropriate in the circumstances.

Yes. Curtilage is defined in the "Oxford English Dictionary" and old valuation and taxation laws contain assessments of curtilage. Broadly, it is defined as the immediate surroundings of a house and perhaps the field that is closely associated with it or the field up to the fence immediately round a house. Usually, about 30m would be a rule of thumb, but the area could be bigger.

That is where the local access forums come in, because circumstances are different in different parts of the country. If there is a problem, the issue should be discussed in the local access forum. An agreement that is satisfactory to everyone ought to be reached. I do not think that the definition should be very strict. We must be careful, because people might alter the layout of a property to meet any definition that is given. The matter is for the common sense of the local access forum.

It is beneficial to have a recognised path network. The more paths, the better. People need to be able to get out and about and paths are needed. However, as Shetland Islands Council said in evidence to the committee, if people focus too much on paths, they may not realise that, according to custom and tradition, they are free to go everywhere. That applies on the Scottish mainland, too. It would not be right to restrict access to paths, but to the extent that paths increase access and make it simpler from everyone's point of view, they are beneficial. It is desirable that money is available to develop the path network.

No. When someone goes off a path, that is perfectly okay, provided that doing so is harmless. If it causes no difficulty, people should not be restricted to paths.

I quoted Tom Johnston earlier. There is a general acceptance that the proposals are similar to the existing common-law position. When I walk in the hills, my experience of landowners is that there is no problem—they give you a welcoming smile. In the past, people walking on uncultivated land have had little difficulty with landowners. There is no reason for the bill to cause any difficulties, but some bits of it might give some people cause to think that they can interrupt access.We discussed restrictions on access rights for commercial users. Those restrictions would give landowners a new ability to ask questions of people. Landowners should not be able to do that. There is no ill will on the part of landowners. That said, a key example of irresponsible restriction of access was the closure of the Cuillins during the foot-and-mouth crisis. The local community objected, which was exceptional, and asserted its common-law public right of access. Because of the importance of the Cuillins to tourism, the local community disregarded McLeod of McLeod's closure.

I am afraid that my work is on the subject of access.

That is an important question. Such a section should be added to the bill and should also include a duty on all public agencies, including the Executive, SNH and the local authorities, to promote the purposes of the bill. At present, that is missing. If it were included, we could be more relaxed about the powers, including those for local authorities. Paragraph 6.8 on page 39 of the access code contains useful wording, which sets out how public agencies should promote the right of access. It would be useful for that wording to be included in the bill. There is a precedent in England, as public agencies have a duty to observe the purposes of national parks.

Yes, I have two points to make. I sent the clerk a paper, which drew attention to some of the areas in which the committee faces a difficulty. I mentioned that the Government has two different positions on whether trespass is a civil wrong. On 1 December 1959, the Government's position, following the "First Report of the Law Reform Committee for Scotland," Cmnd 88, February 1957 was:"In England, a trespasser commits a civil wrong. In Scotland, he does not necessarily do so."—Official Report, House of Commons, Scottish Grand Committee, December 1959; c 5.That is the long-standing position, which goes back to James Bryce. It is also the basis of the statement that Tom Johnston made. However, in Dr Dickson Mabon's statement of 18 April 1967, the Government position was the opposite. He said:"Our predecessors took the view that such provisions were unnecessary in Scotland. This view was often very largely—and erroneously—based on the belief that there is no law of trespass in Scotland and that every Scotsman enjoys as of right the freedom of the countryside … There is very little difference in the law of trespass in Scotland and England. In both countries, it is a civil offence against the personal right of property"—Official Report, House of Commons, Scottish Grand Committee, 18 April 1967; c 11.That is the opposite of the 1959 statement. One of the main areas of work that I did for the LINK access research project, especially when the files became available under the 30-year rule, was to find out how the change came about. As far as I can see, it was not the subject of any Cabinet discussion or anything like that. It emerged from an external working group at the "Countryside in 1970" conference—study group 9. That group was led by planners, the Scottish Landowners Federation and Nature Conservancy. It said that, in both countries, trespass is a civil offence against the personal right of property. That is what went into the Dickson Mabon statement but, as far as we know, it has no validity. The problem with that is that, since then, the Countryside Commission for Scotland and Scottish Natural Heritage have had no choice but to follow the 1967 statement, even though it appears to be without foundation. Dennis Canavan MP raised the matter with Henry McLeish MP, when he was the minister for civil justice. He would not say which of the two statements was correct. He said:"I regret, therefore, that I am unable to say on what basis Mr Macpherson and Dr Dickson Mabon said what they did."The difficulty is that the bill has been drafted, to a large extent, to redress the problems of the 1967 statement, whereas the population at large is still working on the concepts of the 1959 statement, believing that there is no law of trespass and we are free to go everywhere. There is a fundamental conflict. The fact that the Government has two diametrically opposed positions and is not willing to say which one is correct must be unprecedented. I hope that the committee will discuss the matter with the Executive and find out what it believes to be the correct position. That would help to get rid of the great deal of confusion that exists because of the double view of what the common-law rights are.One of the purposes of the new view—as I call it—in 1967 was that there were to be access agreements, under which access to land would be paid for. The bill included a provision for £3 million, in today's money, for payments to landowners for access. There was an experiment involving three landowners—one of them was Colonel Grant of Rothiemurchus. When the proposal for an access agreement reached Inverness, Inverness council was requested to pay 25 per cent of the cost. The Inverness councillors—I presume that it was in this building—said that there was no reason why they should pay for something that they already had, thank you very much. They refused to have anything to do with the agreement. That was a major setback for the 1967 policy, but it did not stop the legal interpretation being built on by the CCS and SNH ever since. The financial objective was rightly stopped.

I have to leave at 4 o'clock.

I am slightly flexible.

On my left are Bruce Logan and Linda Mathieson from the Scottish Countryside Access Network. Dorothy Breckenridge and I are from the Scottish Outdoor Recreation Network. Ann Fraser and Fran Pothecary are from the Scottish Sports Association.

The first issue is one of definition. It would be extremely difficult to define what is commercial and what is not. There are many different examples of that. An example from my own experience concerns a river canoeing activity at an outdoor centre on the west coast, at which I was helping. An angler on the river complained to the tutor that he was paying money to fish there and that the students were disturbing the fishing. Before the instructor could say anything, one of the boys from Port Glasgow—wee Jamie—said, "Mister, I've paid the centre to be here. What's more, I may be disturbing the fish, but I'm certainly not killing them." The centre was owned by a local authority and was in the public sector. It is now a charitable trust and is still owned by the local authority, but it has a commercial dimension as well. In such cases, it is difficult to work out who is who and what the current status is.The second issue concerns challenges in relation to identification. If people do not know the status of an organisation, inevitably everyone will be challenged if the landowner or land manager wants to take issue. Thirdly, there are a range of legal issues and difficulties that are associated with contract law. For example, if one has a contract with a client as a provider, is there any reason why that contract should be disclosed to a third party? I do not think so, but I do not know. I am not a specialist in such issues, but I believe that the provisions will result in a reduction in the perceived rights of access and, thereby, a reduction in the economic benefits to rural communities, which are significant. I can give more evidence on those benefits later, if members wish.

There will be a presumption that there is a problem, and public perception is very important. The public perception of the problem of foot-and-mouth disease lasted far longer than the actual problem. Some people are still not taking their recreation in the countryside because they believe that there is a problem. People go to the countryside for enjoyment, regardless of whether they are with a guided party or with friends. They do not go for confrontation. If it is perceived that there will be a problem or confrontation, people will deny themselves access. That, in addition to the concerns that Peter Higgins identified, is a major outcome that will flow from the bill.From a tourism perspective, visitors choose to come on holiday to Scotland to enjoy the landscape. If they perceive a problem with doing that, they will not come. If there are major problems because providers do not know who the landowner is—which is a general problem in Scotland—or if they face continual confrontation, that will cause emotional attrition to the people who take part in the activity, whether it is the provider who is challenged on the hill or the members of the group. That situation will erode the common-law practices of taking access in Scotland.

That takes place at present. For example, events such as T in the Park take place on private land. It is accepted that that is an event and people pay to take access when that event is taking place. Outwith that time, people can take access to walk as normal in the fields in those areas. That is just common sense and reasonable behaviour. The outdoor access code identifies that and provides suggestions for procedures in such cases. The recreation field has never regarded paying for additional facilities as a problem.

We believe that it is inappropriate to include this provision in the bill, and that it can be dealt with in the code, which can deal with the nuances of different situations, from small commercial groups up to large events. The code can contain the detail that people need if they undertake events in the countryside. We believe that that should not be in included the bill and that detailed guidance about commercial, educational and business activity in the countryside should be contained in the code.

To follow up that point, I refer you to the relevant parts of the code, which make the position plain. The code says:"In practice, it will sometimes be difficult to establish commercial from other forms of access and land managers are encouraged to continue to allow a wide range of commercial activities where these are undertaken responsibly and do not interfere with their own interests."I am a member of the access forum, as are two members of this panel—Ann Fraser and Fran Pothecary—and this matter came up as an issue for discussion over a number of access forum meetings. Agreement was not reached on the issue, principally—I think—because it was not possible to agree any definition of the phrase "commercial activities." One of the land-owning interests was asked to come up with a definition, but either did not, or could not, do so. The view on this side of the table is that we should rely on what the code recommends.

I am sorry, but I do not follow you.

The access forum's position has always been that the bill should be a simple document that provides for universal access and that it should be subject to the provisions of the code, in as far as the exercise of that access is considered responsible by both access users and landowner managers.

Yes. There is no doubt that such differentiation would be extremely difficult to implement. Concerns were raised in the consultation responses about the possibility of criminal activity at night if the right of access were to be extended to night-time hours. Our argument is that the commission of an offence, if you like, has absolutely nothing to do with the right of access. If somebody is going to commit an offence or behave irresponsibly, they will do so regardless of whether they have a right of access.The result of section 11(1)(d) would be that perfectly lawful access at night—for people coming off the hills or for wild camping—would be debarred or discouraged. Such prohibition would make no difference to people who wanted to behave irresponsibly or criminally in the countryside. We believe that the more access there is at night, the better. That would discourage those who want to undertake an offence.

The issue is one of ideology and principle. Those of us who recreate or work as educators or commercial operators in the countryside are used to a range of traditional liberties. Periodically, however, we have experienced a number of what I shall call difficulties with psychological warfare—attrition, if you like—in respect of access to parts of the countryside. The bill, which I hope will soon become an act, should enshrine in law the ideology and principle that there is a right of free access to the countryside.

I can give personal examples. I have a large range of such examples, but I will give only one, which relates to access to the hills at Glen Lyon. The person who owns the land undertakes a range of commercial activities there, such as pheasant shooting, deer stalking and grouse shooting. At almost any stage of the year, it is possible to argue that access should be denied to that land as a result of one or other of those activities. In consequence, fences and numerous signs deter access. My colleagues have many other examples, but I will confine myself to one.

I would like to say something more about the practical problems. Most people think that they have a general right of access to land, but users other than walkers—cyclists and horse-riders, for example—have faced challenges in the past 50 years or so and have found it difficult to get access to land. The bill will open up Scotland for us. Many landowners do not think that users other than walkers have any right of access to the countryside.

No, in so far as it is clearly not a good time to be on the hill when people are shooting. That said, people are being persuaded that the period in which they should not be there extends for much longer than the actual duration of the shootings. There are ways of finding out when shooting will take place. As a result, there should be no problem in that respect.Shooting is as much a form of recreation as hillwalking and horse-riding, and it is possible for a piece of land to have multiple uses, as long as arrangements are in place. At the moment, those arrangements exist through consultation using the hill phone system, for example. If people were prepared to give appropriate notice of the times when they will be undertaking particular activities, it would be possible for others to avoid such areas at those times. The question whether or not access is allowed is quite separate.

Yes, that is crucial. If the legislation does not do that, it does nothing.

I want to speak on behalf of access practitioners and SCAN. If the bill were passed, it would make a great difference to us.I am a member of a local authority, but a whole range of other people is involved in SCAN; we have been trying for a long time to improve people's general access to the countryside. The current laws and facilities are difficult and we have found it hard to deliver access quickly, effectively and cost-effectively because we have become involved in long-winded access agreements with various landowners and farmers. Although those people are not anti-access—they are willing to give access to the land—the process of finding out and implementing how they want to control access is very complicated and can sometimes take three, four or five years.Aberdeenshire Council is quite proactive and for the past four or five years has been trying to deliver access networks on the ground, which is the aim of the core path plan. However, because the process is so long and slow, we are still negotiating over two or three pieces of route in every network. As a result, we feel that the bill will provide us with more facility to deliver access more effectively and economically for the community of Scotland.

That is my understanding.

I would like to answer that question, but I did not catch the last part of it.

No. There are many examples of people coming off the hills much later than 10 pm; indeed, I can attest to my own experience in that respect. Such a measure would not address the fact that many people will be out on the hills deliberately for a number of days or might be involved in a multi-day journey and undertaking wild camping. As a result, it would be impractical to regulate night-time access for recreational use.Such a prohibition would also be key to people's understanding of where they should and should not be. Having exemptions creates tension, which makes people think, "We should not be here during the hours of darkness." There could be real problems if people try to hurry off the hill because they are thinking about what would, in effect, be a night-time curfew. That might not be in the best interests of the activity that they are undertaking or of their own safety.

I would like to add couple of points. First, imagine yourself as a birdwatcher who is very interested in birds at dawn and at dusk. The chances are that you would want to have access before dawn and after dusk.My second point is philosophical. There are shades of nannying in what is proposed, which seems to suggest that people cannot look after themselves in the hours of darkness. When I work with people outdoors, it is part of my job to ensure that they are competent in all sorts of circumstances. That is a key skill. If the provision is allowable under the legislation, but is not enforced under the legislation, the situation could vary from one local authority area to the next, so some places would be no-go areas and others would not. That would lead to inconsistencies.

To date, most places have offered alternative routes. I understand that, after discussions, the access forum came up with the hill phone system, whereby walkers can phone various numbers to find out whether the estate is shooting on a given date and what alternative routes are suggested. That seems to work fairly well. Glen Lyon is not part of the hill phone system, which is a voluntary scheme that has gradually expanded over the years. Fran Pothecary has been involved with that.

I think that strengthening will come through the code, which gives advice. Local access forums are the right place for discussion on the matter, but it is also important to have something like the national access forum to provide national guidelines that others can work under. It is important, especially for visitors to Scotland, that the system can be easily understood. If there are lots of local differences, it is difficult for people to know where they can go, what they can do and when they can do it. We hope that the hill phone system will be available nationally. That is the way to go.

Yes.

It is important to understand that potentially conflicting activities such as hillwalking and stalking are performed at the moment without the need for closure of land under local authority orders. We see no reason why that should not continue under the Land Reform (Scotland) Bill. Guidance on how those activities should interact is outlined clearly in the code. By and large, those activities interact for 95 per cent of the time without a problem. Between August and October, people go on the hills and walk. As happens on the Mar Lodge estate, a simple sign that is erected on the day serves to indicate where shooting is taking place and to recommend that people go in a different direction. There is no need to close land because of such activities, and certainly not under local authority orders.

The answer to both questions is yes.In addition, if you have ever been out for a walk in the moonlight in wintertime, you will know that that is a profoundly moving experience. That is one of the reasons why I followed this vocation.

It does not matter.

Alan Blackshaw's point of view is respectable, but there is a different point of view—which I do not necessarily share—that one might call the conventional legal understanding of the position. I do not want to offer a judgment on which view might be correct, but I suggest that the purpose of the bill is to blow away the fog of uncertainty and confusion that creates a lack of confidence in users and to put in place a system that everyone can understand.

That question presupposes that I accept that there are existing rights of access. That question is still open, however. Of course, as Alan Blackshaw said, there could well be a problem about access to land that is excluded from the right to access. In that situation, there would be a question to do with the exercise of the right of access. I have no answer to that, other than to say that the situation is consistent with the status quo ante.

That is good to hear.

Alan Blackshaw pointed out that two perceptions exist of the right to access. One is a common-law perception that exists in the minds of people who undertake outdoor recreation and the other is to do with the rights that exist formally in statute. The Land Reform (Scotland) Bill has the potential to enshrine in law the common-law perception that, as long as people are not causing damage, they have a right of access to land and water. However, unless the bill is amended, it might undermine that. An example of the way in which it might do that is the exclusion of commercial and business activities. The definition in the bill would undermine people's perception of their right to undertake commercial activity on the land. The bill is a step in the right direction, but there are problems with its present form that might lead to a perception that the public had less right to be on land than they did previously.

We would agree with that summation. We hope that improvements to the bill could simplify the situation to ensure that people are aware of the situation with regard to, for example, passing through farms, which is a traditional way to access land. Such things could be dealt with in the code, rather than in the bill. That would simplify the concept and perception of what we are allowed to do. The advisory parts should be included in the access code. That is what happens at present under the common-law tradition. We believe that we are acting responsibly.

The bill as it stands would mean that landowners would have the same redress as they do currently. That is, they could ask somebody to move from their land. They could also invoke a process of interdict if they were concerned about somebody returning to their land and about that person's behaviour. Other remedies are proposed in the bill. For example, the bill gives much wider authority to local authorities to make byelaws in relation to all land and waters; authorities are currently able to do so only on their own land.The bill will work by people understanding it and accepting its principles. Compliance with the bill should be achieved as much as possible through education and guidance. That is why we believe that the access code is the tool by which the bill will be implemented. We have not found any reason so far to introduce criminal provisions to the bill. That is why there was such an outcry when they were included in the draft bill. Consultees said that there was no need for those provisions and that no problem existed. They believed strongly that the existing provisions for landowners to take action, for example, were sufficient.

At the moment, there is no great problem of irresponsible behaviour. The problem is the perception of some land managers that a mass of people will come on to the land when the bill is passed. I do not believe that that will happen. There will obviously be an increase in people on the land as people's confidence that they can go on to the land increases. Most people are highly responsible on the land. If a landowner puts up a sign, most recreationists will obey it. That was demonstrated during the foot-and-mouth disease outbreak. Scotland was immediately closed and everyone kept off the land. I cannot therefore envisage a great problem.

Sections 2 and 3 deal respectively with the behaviour of individuals and of land managers, such as farmers. The local access forums that the bill proposes should be sufficient to deal with any dispute or concern about unreasonable behaviour. Such disputes or concerns should be dealt with in that way; they should not be dealt with through criminal law or through enforcement.

The answer relates to the code and the education process. It will be the responsibility of the agencies as well as individuals to ensure that people understand what they are doing when they are accessing the countryside and how they interact with it. If people understand better what effects they have on the countryside, that will, in time, ensure that they behave more reasonably. In certain situations, we will be able to put advisory notices up to explain what is happening. I am sure that people will adhere to those notices if they understand fully the reasons for them. That is how we should deal with the matter.

Rangers would have a role in an educational and advisory capacity, but not in a controlling capacity.

I support that. There is a sense in which people perceive access as a problem, but I perceive it as a right and an opportunity. All sorts of educational opportunities are associated with increased confidence in access to the countryside. Those benefits stretch from socioeconomic benefits to the local community to environmental understanding and awareness of the natural, cultural, social and historical heritage. We cannot have those benefits without a feeling of freedom to move in the countryside. I believe strongly that it is the role of the educator—whether teachers, outdoor instructors or rangers—to promote a code of responsible behaviour.

At present, in the situation that you described, you might have a discussion with a security guard. There might be a local ranger, employed by the estate, who could mediate to some extent. If there were cause for concern that you were being denied a common-law or statutory right to access and you did not agree with the mediation, good press coverage of the matter would probably change the estate's mind about its action. You would not necessarily have to go down the road of civil or criminal legal action apart from that of interdict. If there were a fracas at the site, that would be a breach of the peace and it would be dealt with.

There is a very real practical problem. Let us consider a dispute between manager A and land user B, 10 miles from the nearest road or farm track. The conversation might go as follows. "You're acting irresponsibly." "No, I'm not." "Yes, you are." "No, I'm not." A dispute thereby arises, but how on earth might that be resolved practically? A land manager has no right of arrest, and cannot stop the person who may wish to be on the land, even if that is against the land manager's wishes. All he can do is say, "Hang on, you're acting really irresponsibly here, could you just hold on for a couple of hours?" while he whistles up the local ranger or policeman. That is impractical.

The same situation would apply to a fracas between two people on a street in the middle of Glasgow if it, like the situation described by Mr Logan, did not reach the level of seriousness that you describe. It would present the same difficulty. If someone is misbehaving or behaving irresponsibly in the countryside, it is clearly an issue of concern. Essentially, there is nothing that one could do about it either way, apart from through recourse to a long, extensive process. At some point, we have to be pragmatic and admit that there are some things that we cannot fight, particularly if the problem is not a serious or repeated one. It is a similar situation to one that I recently experienced when someone kicked the wing mirror off my car on the street at night.

Yes, but the vandals often cannot be caught. There is nuisance associated with that and that is the level to which I am referring.

It was slightly unfortunate that the code was published later than the bill. In fact, I think that it arrived on the day when I submitted the SSA submission. I have looked at the code and think that it is written in a way that is accessible to people. It is understandable and includes summary pages. There is no doubt that it is through the code that people will interact with the bill, as the code is what they are likely to read. We need to include as much information as possible in the code to help people decide how to undertake their right of access when they enter a field of barley, for example.

I totally agree with what Fran has said. The code is easier to read than the bill, but much more needs to go into it. There is much in the bill that could be moved into the code. The code is more easily adapted if it is found at a later date that it is not suitable. It was produced by a consensus of all the bodies involved. It is hoped that that consensus will continue and that possible changes to the code will be referred to the national access forum for debate.

I would like to make a point in support of the comments that Fran Pothecary and Ann Fraser have made. The more that is included in the code, where appropriate, the simpler and more understandable the legislation can be. The code could expand on some of the issues about which we are not very clear. It would be helpful for the code to be a source of guidance on some provisions in the bill that are not very easy to understand, where it would be unwieldy to include more information in the bill.

We see the code as a more organic aspect of the legislation than the bill. If it were articulated through the national access forum, that would allow for on-going consultation, which would be very positive. It would also ensure an overall consistency of approach and help to guide local access forums in carrying out their responsibilities. All the issues that we have discussed should be drawn together in a very simple bill with a more extensive and readily reviewed code.

I have been asked to say a few things. I have made half those points already, so I will not repeat myself.The key issue is the mindset of the people who are seeking to gain access to the countryside and that of the people who manage the countryside, which are two sides of the same coin. Both sides need to understand the responsibilities, rights and work of the other. To think of the countryside as characterised by a conflict between recreational access and land managers is a gross oversimplification, with which we would not want to associate ourselves. It is important to realise that recreational economies are interdependent with rural economies in a very extensive way. In the long run, the economic benefits of countryside recreation and the ways in which people make their livings out of extended periods of occupancy of the countryside by recreational users will help to sustain jobs in rural communities. I can present members with a significant amount of evidence to that effect, if they would like to see it.Initially, this legislation was driven by ideology. The aim was to enshrine in law a customary tradition of access to the countryside. That should be expressed in a very simple act that is easy to understand and welcoming of visitors. We need to bear in mind that in the modern world we are competing with Norway and other Scandinavian countries for visitors. Many of the issues that we have raised should be wrapped up in a code that can be reviewed.We want there to be a simple, clear statement, so that everyone understands that they have a right of access to the countryside. All of us would benefit from that.Thank you for dealing with us as a panel. I know that it has not always been easy during this evidence-taking session for members to know who to address themselves to and I apologise for any difficulties that that may have caused. Thank you for your time.

I did not detect much controversy among the preceding witnesses. The fundamental point is that most people who are involved in outdoor recreation believe in the common-law position, as was expressed by Alan Blackshaw. However, the understanding is steadily being eroded by the attitudes of certain landowners and some public bodies. It is important that the bill secures the common-law position and confirms what most people who access the outdoors believe.

A couple of years ago, East of Scotland Water began putting up signs saying "No pedestrian access" on all the tracks leading up to their reservoirs. That was resolved with a little bit of therapeutic publicity.

From my colleagues who are involved with water issues, I know that there have been significant difficulties with Scottish and Southern Energy plc. Difficulties are put in place in the sense that public bodies resist allowing access and suggest that people should not go canoeing or walking in certain areas. That is why it is so important that the bill imposes a duty on all public bodies to uphold the principles of the legislation, as Alan Blackshaw said.

Safety is an increasingly important issue. It is often mentioned by the NFUS. We would look to the Forestry Commission and the forestry industry, as they have operated a policy of freedom of access for many years and they carry out many dangerous operations. That is particularly true of the Forestry Commission, which is Scotland's biggest landowner. The Forestry Commission has a sophisticated and well-understood signing policy, which advises people when to take extra care and when not to go into certain areas or interfere with log stacks. That system works well and a lot of those principles could be applied in relation to farming and other activities.

Yes, absolutely. In the access forum, there was total agreement from the outdoor recreation side that the bill should place no additional burdens on land managers. The NFUS supplied an important piece of information; it indicated that the insurance company NFU Mutual expected no rise in premiums as a result of the bill.

Our understanding is that the Occupiers' Liability (Scotland) Act 1960 would continue unaffected by the bill. There is no disagreement between us and the land-managing interests on that issue. We consider the issue to be a technical matter that needs to be resolved in relation to the previous legislation. If necessary, the position should be written clearly and specifically into the bill.

No. The right of access should apply to all land. That is an important issue. We should consider what happens in other countries, particularly Norway and Sweden. When I travelled down the A9 with a senior official from the Swedish environmental protection agency, we discussed the land at either side of the road. I asked what the situation would be in Sweden. He made it absolutely clear that there would be freedom of access across all the land, as long as care was taken not to damage any crops. Many people in local authorities say to me that, in order to secure a strong negotiating position and to get paths established, they have to start from the principle that the landowner realises that people have freedom of access. If that principle is in place, landowners are much more willing to negotiate paths and tracks through enclosed ground.

A crucial part of the legislation is the modernisation of the arrangements for paths, so we totally support the development of a core path network. However, that must be done in a way that is carefully balanced against the general right of access. The Shetland Islands Council submission, which was mentioned earlier, shows how worried that local authority is. If we put too much emphasis on paths, we might lose the general freedom. We are not just talking about core paths; there are many other paths and tracks in the countryside that we expect people to make a lot of use of. Given the educational package that will accompany the bill, we think that the management of access to low ground will be relatively straightforward.

I will ask John Mayhew to comment on section 9(2)(a) in a moment. We see no difficulties with a right of responsible access to the RSPB's land holdings. Where a nature conservation issue that relates to reserve management objectives arises, in relation to looking after birds, for example, there are ways of addressing that through conservation legislation and through agreements with Scottish Natural Heritage, local authorities and so forth. Nature conservation access issues are addressed by section 26, although in our evidence we suggest ways in which that provision could be improved. I will ask John Mayhew to comment on the commercial use of land, be it a nature reserve or otherwise.

We support what other witnesses have said, in that we do not think that commercial activities should be excluded from the right of responsible access. Any issues that arise from commercial activity should be dealt with in the code, not in the bill. I have a slightly different take on that, based on my experience of a land-managing organisation, which in my case was the National Trust for Scotland, although it applies to the other organisations in Scottish Environment LINK that manage land. In our view, the issue is the impact that groups make, not whether those groups are commercial.I will give examples from the Highlands. Glencoe is a popular National Trust for Scotland property. It is heavily used by commercial groups, but also by charitable groups and charity events. Our experience there and at other large estates is that large or badly managed charity events can have greater impacts than small or well-managed commercial groups. Our concern is not whether the activity is commercial; our concern is the impact that the activity has on the ground—on the natural heritage, on the local community and on the activities of the land manager.The code already deals with that quite well. I will not quote the whole code, but under the heading "The key responsibilities of the public", it says:"Take special care if you are organising a group or event"and consult managers"if you wish … intensive or longer-term use of the place".The code says that people should obtain permission if they require facilities or services and take"adequate measures to ensure that impacts … are minimised."That is the right approach. The larger the group, the more intense the likely impact and the more important it is to consult and co-operate with the manager, regardless of whether the activity is commercial.It is important for local tourism economies that commercial groups are not excluded. The guides and the activity holidays that the committee has heard about perform economic activities that are important not only in their own right, but for the image of Scotland as an open and welcoming country in which access to the countryside is a good feature. Commercial activity should not be excluded from the right of access. All the issues should be dealt with in the code.

I will say a few introductory words and then hand over to Dave Morris. In our evidence, we suggest that the bill should include a better definition of the code's purpose, to make it clear that the code is intended to develop a way in which land managers, access takers and public agencies can interact and resolve their difficulties. If the bill contained a clearer definition of the code's purpose, rather than just details of how it will be produced and approved, that might give comfort to people who are concerned about the inclusion of certain provisions in the bill. I ask Dave Morris to say a few more words on our view of the balance between the bill and the code.

I strongly endorse the idea that the code should contain as much detail as possible. I refer the committee to what Highland Council said in its submission—we need legislation that is simple to understand and to administer. That principle is important. We want everything to be in the code. If someone wants to know how to go about in the countryside responsibly, we should be able to say, "It's in the code."I have some difficulty with the NFUS's position. I spent many days in the access forum negotiating on the code and it was my impression that the code was long because the NFUS and the SLF wanted more and more detail.The discussions were useful. It was always the intention that simpler codes for particular activities would be produced from the code, so that what someone had in their hand when they entered an Inverness tourist office would be a simple leaflet that summarised the main provisions. Of course, the NFUS left the access forum a year ago, so no discussion has taken place since. I do not understand the evidence that it gave last week.

I cannot comment.

In the access forum's discussions, the code has always been described as having evidential status. We understood that to mean that, if someone sought an interdict, either side could deploy the code in a court dispute to support their point of view. The code would have no more status than that.

Once people are in court proceedings, they will get into the fine-scale interpretation of the circumstances and why someone did this or that. All the detail of how someone acts responsibly should be in the code, as it is to the code that they will refer

We suggest that the committee's general approach should be to examine the bill line by line to test whether each provision would reduce the existing common-law position, as we understand it. If we were to go up Ben Wyvis today, I could pick blaeberries. However, in a year's time, because of a line in the bill, I am not sure that I will be able to do that.At the moment, if there is snow on the ground, I can go to Inverness golf course and cross-country ski or sledge without any difficulty. The golf course is happy to permit that. However, because of a line about golf courses in the bill, I may not be able to do that. I urge the committee to take everything out of the bill that it feels should be put into the code. That would make the code compatible with the position that was set out by Alan Blackshaw.

Yes. A right of access over golf courses should be included. We would like the bill to be amended slightly. There is no reason why there should not be recreation on, as well as passage over, golf courses. The code should deal with such issues. As I indicated, as the bill stands, people may not be able to sledge or cross-country ski on a golf course. Those are important activities when we get a decent fall of snow.

It should apply to all. The Inverness golf course has worked out how to manage access; it indicates where the greens and the tees are. We have always said that there should be no access over the greens and tees. All that detail can be written into the code. Many golf courses demonstrate how access can be given successfully.

Someone such as Andy Wightman could give that sort of detail. The committee should be aware that the location of golf courses is often crucial. This is a side issue in terms of the bill, but we are engaged in a debate about planning controls over the location of golf courses. Far too many new golf courses are being built right up against river banks and the coastline. That is a problem.

My understanding is that section 6(g)(ii) refers only to members of the public who are admitted for the activity for which they make payment. When I raised that issue with the Executive, it indicated that that was the intention, although the wording seems a little obscure.

Yes.

For a wide range of reasons we do not consider any additional enforcement measures necessary within the bill. On what we might describe as irresponsibility by walkers, we think that the wide range of existing legislation—particularly from our point of view as land management conservation non-governmental organisations—provides sufficient remedies to address the large number of problems. That includes the wildlife and conservation legislation, the poaching legislation, SNH's byelaw-making powers and section 26, together with what Alan Blackshaw was describing earlier about breach of the peace and malicious mischief.