Official Report 285KB pdf
This is the fifth session of evidence on the Land Reform (Scotland) Bill that the Justice 2 Committee has taken. This session is in addition to those that were previously agreed. The Parliamentary Bureau has been notified of that and is happy with the short extension. We will hear from four sets of witnesses this morning.
I thank our witnesses for coming to the committee at extremely short notice. We did not hold out much hope that that would be possible, but we felt that it was important to try to squeeze in a final evidence-taking session.
What is SNH's understanding of the law of trespass in Scotland?
Our understanding is that, if a person is on land without right or permission, they can be asked to leave; if they decline to do so, the landowner can seek the assistance of the courts. Public rights of way are very unsatisfactory at the moment. Provisions under the Countryside (Scotland) Act 1967 have worked only with difficulty. We do not think that there are other rights. We do not accept that there is a right to roam, although we know that some people argue that there is.
On what legal statute or otherwise do you base the assertion that there is a law of trespass?
On the common law. One must examine how the law has been interpreted. The two leading academic property lawyers in Scotland—Professor William Gordon at the University of Glasgow and Professor Kenneth Reid at the University of Edinburgh—have written substantial texts on property law and have analysed the common law. They take the view that trespass exists in Scotland, in the form that I have just described.
Would it be fair to say that, in coming to that conclusion, they are taking a balance of a wide range of conflicting case law?
Yes. That is what lawyers are trained to do. It is possible to pick out one statement to support almost any viewpoint that one wishes. The law is about interpretation. Professor Gordon and Professor Reid have taken a wide range of statements and formed a conclusion as to what the law is. Until last year, I was a professor of law at the University of Aberdeen. I worked on this subject and I, too, take the view that that is the position on the law of trespass.
You mention the common law and refer to Professor Gordon and Professor Reid. Surely you would agree that what they have said does not constitute the common law. Common law is constituted where there has been a court decision. The professors to whom you refer can only surmise what they think the law is.
I am suggesting that Professor Gordon and Professor Reid have analysed the common law and put down their conclusions. Their book is not the common law, but they have analysed the common law and formed a conclusion about what it is.
They do not formulate the common law, however. I would like us to be clear about that.
No, they do not.
You referred to Professor Reid and Professor Gordon as if they formulated the common law, but you agree that that is not the case. Is there any common law on trespass in Scotland?
There have been a number of cases over the years on public rights of way and what might be described as public servitudes, which is the nearest equivalent to the question of a right to roam that has been before the courts. On public servitudes, the courts have simply set their face against the argument and not accepted it.
Are there any statutory provisions on trespass?
Not that I am aware of.
Are you aware of the Trespass (Scotland) Act 1865?
Yes, but it does not purport to create a common-law right of access. That is not my interpretation of it.
I ask because the committee is trying to establish whether there is any clarity. We might conclude that there is not. We are a bit unhappy with some of the evidence that we have heard in which people are definite that a law of trespass exists in Scotland. The public would probably say that they perceive there to be no such law. No one has mentioned any of the statutory provisions, which are the only law on trespass that exists in Scotland.
I accept that there is much misunderstanding about the issue. Different people genuinely hold different views. I have seen some of Mr Blackshaw's work; it is very interesting, but I do not agree with his conclusions. It is partly because there is so much uncertainty that SNH's view is that the law is badly in need of clarification.
Have there been any prosecutions for trespass in Scotland?
Trespass is not a criminal offence, except if it is associated with the carrying of firearms or with poaching. There would not be a prosecution. There have been a number of civil actions for interdict, some of which have been successful.
So what you are really saying is that, in your view, any law on trespass that exists is part of the civil law of Scotland.
Yes.
Does it matter whether we clear the issue up? If we have a commitment from the Executive that, in creating access rights, it will ensure that no one has any other rights taken away from them, it will be important to establish what those rights are.
It is important for land managers, for people taking recreation and for the public agencies involved in public access in one way or another that the law should be clarified.
I want to pin the issue down. Can you confirm that there is no criminal offence of trespass in Scotland?
Yes, except in the context of malicious damage and poaching, for example.
But that is not trespass; it is malicious damage or poaching.
It would be associated with trespass.
Trespass is a necessary prerequisite to poaching and malicious damage, but in itself trespass is not a criminal offence.
I agree.
You dealt with aspects of interdict. I am pretty certain that sheriffs up and down Scotland have granted interdicts to prevent the incidents that we envisage, but would not interdicts be applied for only when a continuum of incidents had occurred?
An interdict could probably be sought if a difficulty were expected. It would be difficult to obtain and I suspect that a sheriff would be wary of granting it, but Bill Aitken is right that, in practice, that happens when a problem has been persistent.
It is fair to say that the committee has had some difficulty with that issue. What you say is helpful, and it would be more helpful if SNH gave examples from its experience of difficulties that it has sought to remedy through the law.
Some work has been done on that. John Mackay can comment.
SNH would not act because it is an agency that has no land management powers in such cases. We recently produced a summary of current difficulties—primarily local authority cases. We made that compilation as a record to remind us that there are quite a lot of access problems out there. Some are quite tenacious, some continue for a long time and some cost much money to resolve. If it would help, we could make that information available to the committee.
That would be helpful. Will you cite one or two examples?
One well-known—perhaps notorious—case concerned rights of way near Newburgh. It involved an old cart road and took North East Fife District Council, and subsequently Fife Council, 11 years to resolve. I understand that the council's legal costs were about £50,000 and I do not doubt that the other side had to bear costs of the same order.
I will add a slightly different, but relevant, point. One of our principal concerns about the law is that it is uncertain, which is a deterrent. If people do not know their position in relation to land, the majority will not wish to assert a right, because they will not feel confident that it exists. That applies particularly to enclosed land. The perception is widespread that people have a right or a traditional liberty to be on open hill land. Although conflicts arise on open hill land, there are relatively few of them.
You mentioned enclosed land, but would it be fair to say that most of the conflicts around access at the moment tend to be in and around the urban fringes rather than further out in the countryside?
That is fair comment and is borne out by the work that John Mackay mentioned.
I agree with that comment. On the whole, problems on the edges of towns are not necessarily connected with peaceful open-air recreation but are often connected with social problems spilling out from towns. It is important to make that distinction.
Could one of you explain the role of the access code in relation to the bill? Once you have done that, we could go on to talk about the arguments that we have heard that a lot of what is in the bill should be in the access code instead.
The job of the code is to set out what is meant by "responsible behaviour". When the consultative version of the code came out, there was no definition of responsible behaviour in the draft bill. The Scottish Executive has introduced a definition of responsible behaviour in the bill and the job of the code is to establish what that means in practice.
The hope was that the bill could be kept small. Obviously, small is a relative term—the bill is small, considering what it sets out to achieve. The bill was intended to create a right of access, the details of which would be dealt with in the code.
How do you envisage land managers dealing with an individual whom they believe to be exercising irresponsible access? What would the sanctions be?
We recognise that there is a problem. There is no instant solution for a land manager facing a problem at this point. If a person does not leave when the land manager asks them to, all the existing remedies, inadequate as they may be, come into play. The new regime would provide better support for land managers who have a persistent problem. In the first place, there would be preventive mechanisms. The code should ensure that people who exercise the right of access will be much better educated. There will be a better managed network of paths under the core path network. That should be helpful to land managers.
SNH and the access forum have always thought that the bill should have some sort of evidential status so that the responsibilities in the code would be regarded as being important and could be translated across into promoting responsible behaviour. The bill tries to do that to a large extent. That sort of evidential status has been used in other types of code, for example, the highway code, the Disability Discrimination Act 1995 and other pieces of recent legislation. That provides a framework for setting out responsibilities of users and land managers fairly clearly, which is not the case at the moment.
I return to dispute resolution, in which the access code will play a large part. When one goes to the access forum, will the measures that any local authority is able to use be employed against an individual who is alleged not to be using access rights responsibly or for an area of ground that a land manager might seek to exclude from access rights? Can both be done?
I think that both could be done. If byelaws have been breached, the local authority could prosecute the person who has breached them. If an area of land is subject to persistent problems of vandalism or hooliganism, the local authority could focus attention, through a section 11 order, on that piece of land and try to resolve the problem by exempting it or certain conduct on it from rights of access.
Is the local access forum the first port of call in any dispute? Would the local authority deal with it after that?
The forum would not have to be the first port of call, but I hope that it commonly would be.
It is hoped that that is how the system would operate in practice. The dispute would be dealt with through the local access forum first and foremost before the local authority was asked to take action against the individual or on the piece of ground.
I do not know whether the access forum would have a role in a case involving a particular individual.
The forum would have no role?
I am not saying that it would not have a role. I do not think that it would necessarily have a role if only one person was causing a problem. It would be more likely to have a role if there were a persistent problem.
For specific problems, the first port of call in seeking help would be the local authority. That might be difficult and we acknowledge that it might be difficult for individual incidents happening on the ground, as Professor Rowan-Robinson said. The local authority will have the management powers and background. In applying them, we would obviously want the local authority to involve the forum in addressing the dispute or problem, depending on scale and frequency of occurrence.
I have a small point to make. Section 11 requires local authorities to establish local access forums and lists people whom it must consult before passing byelaws. Local access forums are not included. Do you believe that the list should include them?
Yes, I think so.
Some of the recreational bodies have put forward the view that part of what is in the bill should be in the code and some of the restrictions in the code should not be in the bill. What is your opinion of that? I suspect that we are going to hear about it shortly.
Our view was that some of what is in the bill could have been in the code.
Will you be specific?
We thought that access to golf courses was a management issue, which could be dealt with in the code. We acknowledge that there is a difficult balance to strike.
Do you think that other restrictions should be in the code?
Nothing else immediately occurs to me.
A number of issues could be included in the code. Using or having a metal detector is one example. That is a small-scale point that is probably covered by other legislation anyway. It might be that some small points could be in either the bill or the code. The decision whether to include them in the bill or the code involves a degree of judgment about the weight of the problem and about whether people would prefer and be comfortable with the matter being included in the bill as opposed to the code.
I leave section 9(2)(a) to one side, because that refers to commercial access and is of a different character. Do you think that section 9(2)(b) onward could be put more appropriately in the access code than in the bill? Section 9(2)(c) refers to people "taking away anything", which would appear to prevent people from taking wild berries. Surely that could be dealt with more appropriately in the code than in the bill.
A number of conducts that are dealt with in existing legislation—up to a point, that is—could equally well be dealt with through the code. As John Mackay has indicated, using metal detectors is one example. Other issues include:
It covers it.
It covers it. Quite a lot of those conducts could be dealt with through the code. It depends what level of reassurance members feel is appropriate for land managers.
Does George Lyon have further questions?
Yes. I have one further point, but Mr Thomson has something to add.
In our original advice to Government, we envisaged that the land on which crops would be grown should be dealt with in the code rather than in the bill. In our comments on the bill, we do not suggest that we should return to that position; we will live with the suggestion that crops should be excluded. However, there are arguments for dealing with the crops issue through the code rather than in the bill. The crops issue requires quite detailed management guidance and that cannot be included in the bill.
That leads on to the issue that I want to raise. It seems to me that the definition of crops, especially grass—when is it and is it not a crop—is going to prove difficult. How will the definition of crops be implemented? At what stage does grass become a crop and when is it defined as grass?
The question involves a more fundamental issue, which is that there is no difference between what was proposed by the access forum and what is followed under Scandinavian legislation. The bottom-line responsibility for people is that they should not to trample crops.
The question about grass is quite tricky. That is particularly the case in the spring, as we do not always know whether a bit of grass is going to be allowed to grow on for silage or whether it has not yet had beasts put into it for grazing. There will always be uncertainty about the definition of grass as a crop. We could include some advice about grass in the code, but it would be difficult to translate that advice into what it looks like on the ground.
I move on to an issue that has been raised a number of times—the issue of liability. We have a paper from the Law Society of Scotland, in which it argues that section 5(2) of the bill does not deal with the issue of liability to its satisfaction. As I understand it, the Law Society believes that, by conferring the right of access on to individuals, a different status of legal person coming on to the land is created. That increases the duty of obligation for landowners. The Law Society also argues that many more people will walk through landowners' land. What is your view on that issue?
It is clear that the duty of care that a landowner or occupier owes to people coming on to their land will apply to people who are exercising the right of access. If people are able to go where previously they could not, or if more people come on to the land than previously came on to it, the duty of care will be enlarged in that way and the risk of liability will be increased.
So it would have to be very specific?
Yes, I think so.
I have a few questions about the access code. Page 37 of the code deals with where to get help and information at a glance. The first paragraph is headed "Dealing with irresponsible behaviour". Further down the page it says:
It probably covers the sort of situation—which I hope would be unusual—where the prospect of assault arises in connection with the dispute. It need not necessarily be a physical assault; it might just be verbal.
Would the police normally come out if you called them to say that someone is about to assault you? Is that what you would have to say?
It would probably have to be more specific than that before the police were prepared to intervene. The reference is to an exceptional circumstance, but some disputes can be fairly aggressive.
I think that you need to be clearer about that. There is no locus for the police. If there were, we would have to ask the police to come along and talk about the resource implications of the bill. No one has so far suggested that we do that.
We are not suggesting that there would be any new locus for the police that they do not already have.
I am suggesting that there is no locus at all for the police. This is a civil piece of legislation. Unless there is a breach of an interdict—
If there were a breach of the peace, the police would have a locus, but I hope that that situation would not arise very often.
The first bullet point on page 37 of the code uses the phrase:
No, it is not.
Nor does behaving irresponsibly constitute a breach of the peace. My difficulty with the code is that there exists the potential to abuse the police service, by getting the police involved in a dispute between a landowner and a person exercising his or her right of access. I appreciate that someone needs to resolve such disputes and that that must be thought through, but I do not think that the code has been thought through, to be honest. It is quite a big jump to move from a dispute involving irresponsible behaviour to calling the police.
Perhaps what the code suggests is out of proportion to reality. I suspect and hope that calling the police would be happen only exceptionally, but the worry is that irresponsible behaviour might escalate in certain circumstances.
There was general agreement in the access forum that we did not need any new criminal offences—criminal offences exist that cover the really unacceptable activities that might take place in the countryside. The problem is that the existing criminal law on those offences is not always enforced.
The reference to the police in the code could be deleted because such behaviour is covered in the following bullet point.
An important distinction must be made. There is a mistake in the drafting of the code. If we compare the consultation draft with the current draft of the code, we see that a change has been made. The line that was taken in the consultation draft was that if behaviour is irresponsible but not criminal, that is for the local authority to deal with as much as possible, apart from the fact that the individuals involved must talk to each other. If the behaviour is criminal, the police will be brought in—that is the police's locus. The code tries to summarise much of what constitutes irresponsible behaviour that is not criminal. It also lists criminal behaviour. As is clear in the annexe to the code, many criminal sanctions are available for various types of irresponsible behaviour. However, there is still scope for clarification of that point.
I agree. It would make more sense to remove from the code the reference to the police. Otherwise, people might just lift the phone to call the police in civil disputes. I would not be happy with that. If we are not going to create a criminal offence, the police should have no locus at all. That should be the case unless a crime has been committed. As Professor Rowan-Robinson said, the next bullet point makes the situation clear. The code does not, however, include a corresponding right to call the police for a person who believes that he or she has been denied access rights.
I just want clarification on the exclusion of commercial activities from the right of access. Last week, we heard in evidence from the Minister for Environment and Rural Development that the Executive's view is that, although those who use land for commercial activity are excluded from access rights, that exclusion would not interfere with current practice between commercial groups and land managers. Is that your understanding of how the exclusion will operate?
That is the hope, but the fear is that some land managers might take the opportunity to close down existing opportunities.
I am concerned about your use of the words "hope" and "fear", which drives a horse and cart through some of the claims that were made last week.
If commercial access is excluded, hope remains that land managers will allow such access. That is all that it amounts to. Ministers could give guidance, but land managers would be free to choose whether to follow that guidance. Many would, but the fear is that one or two might not.
Is it your view that the exclusion would need to be revisited if it were used to bar many current activities?
Yes. That proved to be the most intractable problem for the access forum. We tried to get agreement on a pragmatic approach, to the effect that the effect of commercial activity—indeed, of any group activity—would be judged on its impact rather than on anything else. However, land managers hold to a point of principle that if commercial access is included in access rights, people will be able to profit from exercising their right of access on the manager's land.
Are there any issues that you feel have not been covered and that you would like to mention to the committee in conclusion?
One issue that we would like to mention is the question of the interaction between people and animals in the countryside, which is of legitimate concern to many people. We in SNH have had research done on that issue, which we can make available to the committee. However, I wish to make the point that there is a danger that the issue is being exaggerated. South of the border, there is an extensive rights-of-way network that includes livestock areas. The incidence of problems in those areas is small. That experience proves wrong the suggestion that it is impossible to combine recreational access and livestock rearing. There is a need for careful management, for guidance and for education of the public about livestock issues, but the problem is not insuperable.
I wish only to emphasise a point that was touched on earlier, which is that assured access to low ground in Scotland is woeful compared with England and Wales. Much of the debate on access tends to focus on hill land, but there is a serious problem with low-ground access. That is part of our reason for suggesting the package of reforms.
Thank you for your evidence this morning and for coming at such short notice. We are grateful.
Before I answer any questions, for the sake of good order I say that my wife and I are involved in a farming enterprise, and that in the course of my business I am an officer for various companies that are involved in farming and land management. However, that has nothing to do with the Law Society. The society does not comment on policy matters; it comments merely on the law and how proposed legislation might interact with it.
I will stop you there. What do you mean,
I am trying to explain that. A landowner is entitled to exclude people from his land if those people do not have permission to be there or if they do not have some other right, such as a public right of way. You asked whether that was a civil or a criminal matter. Undoubtedly, it is a civil matter.
Other than by taking out a civil interdict, can landowners enforce the right that you say they have?
If somebody is on land without right or permission, land managers are entitled to require that person to leave that land. There is some authority to say that such force as is reasonably necessary can be used. However, the use of force might not be practicable, because in doing so one could land oneself with a criminal charge.
What is the Law Society's position on that? Does the law of trespass amount to a landowner being able to say, "I want you to leave my land"? You have said that it amounts to more than that, in that some force can be used, if necessary.
I can supply the committee with a passage from Professor Kenneth Reid's contribution to "The Laws of Scotland: Stair Memorial Encyclopaedia". That would not make the matter clear—the law is not clear as to how far one can go—but the passage describes the parameters.
I doubt that people would disagree that the law is unclear, but your submission seems to be clear that there is a law of trespass. As you said, we perhaps need to qualify precisely what we mean when we use the word "trespass". Do you agree that, if trespass is an offence, it is not a criminal offence but an offence under civil law?
A person's being on somebody else's ground and nothing more would not come under criminal law. Of course, over the years, particular activities have been made criminal. For example, poaching and other offences under the Trespass (Scotland) Act 1865 are criminal matters, as are many others of which the committee will be aware.
Your submission does not seem to refer to the Trespass (Scotland) Act 1865.
If it does not, we certainly referred to the act in a previous submission. The Trespass (Scotland) Act 1865 certainly exists.
The committee is trying to discover whether there is any clarity on or agreement about the law. Part of our difficulty is that each time we ask what the current legal position is, no reference is made to the only statute that exists. Your submission refers to institutional writers and people who have an opinion about the law. We are never referred to any proper law. I would have thought that it would be important to refer to statute.
The 1865 act is not relevant to plain trespass, because it deals with lighting of fires near woodlands and with camping on enclosed grounds. Both those actions are made offences in certain circumstances under that act. However, plain trespass is about person A walking onto person B's ground without B's permission or without any other right.
That is your perspective. What surprises me is that I never get a clear answer when I ask the objective question, "What is the law of Scotland?" We are clear that there is such a thing as the Trespass (Scotland) Act 1865. However, although various writers have given their opinion, we are unclear about what the law of Scotland is.
As I said, the Trespass (Scotland) Act 1865 is not relevant to a straightforward trespass in the sense of a person going on to somebody else's ground without permission. If they do not have that permission or some other right—a right of access to get to a house, for example—they are not entitled to be there if the landowner objects to their presence and asks them to go. That is the position.
Although that is the Law Society's opinion, an awful lot of people would disagree that that is the law of Scotland.
Let us explore the matter a bit further. I am not trying to debate points of law—I am in an inferior position to you in such matters. However, is not it the case that although it might not be illegal for somebody to be somewhere, what he or she does there could be illegal?
No. That is not what I said. The position is set out clearly in the letter that you all received from the Law Society. On page 7, we quote Professor Anton, writing in the then Scottish Rights of Way Society's publication of 15 or so years ago. He wrote:
That is not what Professor Gordon says—it is your interpretation of what he says.
I am sorry but I am going to challenge Malcolm Strang Steel strongly on this.
I do not think that the common law—which is derived from principles of Roman law, as you probably know—as interpreted over the years by the courts, which are the ultimate arbiters of what is or is not the law, would support your argument.
Let me put it to you thus, as a layman to a lawyer. From what source does the common law derive if it is not derived from the shared belief and experience of the common man and woman, to the effect that there exists a right to access?
That is erroneous. The common law derives from principle. I have stated the principle. To use the words of the standard textbook, by Gloag and Henderson, which I quoted in—
I am sorry, but I will interrupt you at that point. The textbook is fine, but presumably it draws on some underlying principle, rather than being the principle.
Yes.
We need to understand what underlies the interpretations that the textbook to which you refer gives us. At the moment, we fail to understand that. That might be our fault; it might be yours. Please lighten our darkness.
In the words of Gloag and Henderson, the underlying principle is that
You said:
The interpretation of the courts over the years and of subsequent institutional writers is not with you.
You have cited only one case. Is it not fair to say that no body of common law supports your position? It is only supported by the opinions of professors and institutional writers, who do not base their opinions on court decisions. We have the opinion of Lord Trayner in Wood v North British Railway—that is the only court decision that we have.
The common law is derived from principle as interpreted by subsequent writers and the courts. In a court case in 1899, a judge pointed out that the notion that there is no law of trespass in Scotland is "loose and inaccurate". I have expanded on that in my—
Was that in Wood v North British Railway?
Do you want the full quotation?
If the committee wishes, we can compile a list of the cases on which our comments are based. Although we have a list in front of us, I do not think that the committee would find it useful if we simply read out the cases one by one. We can compile a paper in which we list the cases that the opinions are based on and have been based on over the years.
With respect, the whole basis for our examination of the issue is that there is a dispute about whether there is a law of trespass in Scotland among the people from whom we have taken evidence. You say that there is such a law. When you wrote to us, you cited one case.
There are more cases than that.
That is the evidence that you have chosen to submit, which is not convincing us.
The books contain a wealth of footnotes with references to various cases on which the views of professors who are much more learned than me are based.
I find your evidence interesting. I will not argue about whether the learned gentlemen who have interpreted that there is a law of trespass are right or wrong. Clearly, you argue that there is a law of trespass. We have heard that from other witnesses. Fundamentally, we are dealing with a civil matter. The key issue is that a landowner may use reasonable force to eject someone from their land. In practical terms, that is where some of the confusion lies.
That is perfectly correct. However, the landowner would still be entitled to ask the person to leave, because he would be doing so as of right. Unless the person had the owner's permission to be on the land, he would be there without any right.
I understand that, but that is almost unenforceable. The landowner could not ask the police to escort the person from the land.
That is true, unless they were causing a nuisance.
Or a breach of the peace.
Yes. That would be an entirely different matter. Of course, the landowner could raise an action of interdict against a person if he had a reasonable apprehension that that person would persist in walking over his land. The action of interdict would be available whether or not the person had damaged property or had misbehaved; it would arise simply because he was persistently there.
I return to the practical reality of the matter. A landowner who sees Mr and Mrs Bloggs walking through his fields on a Sunday afternoon might well ask them to leave his land, but if they refuse to do so, they will probably just walk on. In the real world, it is unlikely that the landowner will rush to the courts to seek an interdict to prevent those people from walking across his fields. To all intents and purposes, the law of trespass is largely unenforceable.
I will reinforce that point with a sentence from Professor Reid's contribution:
Exactly. That is the key issue.
However, the fact that the basic law is unenforceable does not alter it.
I am not arguing that the law does not exist. I am suggesting that it is practically unenforceable, except in extreme cases.
We will now consider the access code.
As the bill runs in tandem with the access code, the two have to relate to each other closely. The balance of the evidence that we have received so far is in favour of slimming down the bill and moving some of its provisions to the code. What is your view on that? If you think that material should be moved in either direction—from the code to the bill or vice versa—which particular areas would you identify?
I do not have a view on whether the bill should be slimmed down, as the question verges on matters of policy on which the Law Society of Scotland does not wish to comment. However, I will say that the code has only evidential status, which means that a person can breach the code without necessarily being irresponsible. Equally, in theory, a person could comply with every syllable of the code and still act irresponsibly. The code is neither conclusive nor binding. As a result, if you want to make particular provisions binding in all circumstances, in all places and on all people, either the provisions will have to go in the bill or you will have to make the code conclusive. As drafted, the code contains a lot of material that is more advisory than anything else, which means that it would not be appropriate to make the code conclusive on the question whether someone has been responsible or irresponsible.
From what you are saying, I take it that although the code cannot be held to define all forms of irresponsible behaviour, it can document deviations from responsible behaviour. However, the bottom line is that it is what the bill describes as responsible access that will cause the courts to take action. The code, which will have been passed by Parliament, will help the courts to understand and interpret what is in the bill. In itself, it creates no new definition of responsible or irresponsible behaviour.
Yes, I agree with that.
Liability is also a vexed question. When the Minister for Environment and Rural Development gave evidence to the committee, he said, in reply to a question that I asked, that the bill does not increase liability on a land manager. Have you any comment on that?
In a way, there are two answers to that. Land managers will still be bound by the Occupiers' Liability (Scotland) Act 1960. That act applies a test of what it is reasonable for occupiers of land to do to prevent injury, for example. They take a reasonable man test.
If the minister's statement is considered to be correct, there needs to be a provision in the bill making clear that people access land at their own risk. That would enable a defence of volenti non fit injuria to be made.
That is correct. The minister may say that it is intended that people should exercise the right of access at their own risk, but that is not what the bill says. If that is the intention, section 5(2) must be written differently to express that.
In your view, under the bill, if someone went on to land containing a quarry and fell into the quarry, the landowner could not lodge a defence of volenti non fit injuria.
I do not think that he could. The defence of volenti non fit injuria applies when someone accepts a risk voluntarily. Under the proposed legislation, people would be exercising a right.
The clear remedy would be to say in the bill that people accessing land do so at their own risk.
If that is Parliament's intention, it must insert such a provision in the bill. The bill as written does not meet that intention.
If such a provision were written into the bill, would it remove all responsibility from the landowner to take due care?
In our submission, we recommend that it should not remove entirely that responsibility.
At issue is how far we should go and where the balance of responsibility should lie.
The responsibilities of landowners should be balanced with the responsibilities of those accessing land. We have suggested that the Parliament should follow the Countryside and Rights of Way Act 2000 and exclude
So those words should be added to the bill.
We recommend that.
That is a helpful suggestion.
I will not comment on a policy decision. The intention may be to pass liability for risks from the land manager to the access taker, but the bill does not do that. The bill reapplies existing legislation in circumstances that will be totally different once the bill has been passed.
Section 5(2) is somewhat ambiguous. It can be read as re-emphasising the duty of care to different categories of people. If that is what it is doing, it is imposing a higher duty of care on the landowner, as there is a higher duty of care to someone who has a right of access than to someone who has no such right.
To go back to your paper, I accept that the bill creates a new class of access taker and that there is a strong argument that the question of liability must be dealt with, but I am less convinced by your other two arguments. First, you say that because a hazard is closer to where the public might be, there is more chance of the public being damaged or the hazard causing them harm. Surely if something is hazardous, it does not matter if it is one mile or 20 miles from the road. A landowner cannot prevent people from roaming across his land at the moment, and he would still have a duty of care to ensure that something is not hazardous to someone who happens to walk by. I do not understand your logic on that point.
That might be one view, but it is not the view that the courts in Scotland have taken. The courts and the judges who will interpret the legislation have taken the view that if a site is remote the risk is remote.
What is the definition of remote?
There is no definition of remote. It depends on the circumstances.
I understand that.
We are saying that the chances of a piece of land being remote are a good deal less if people have a right to walk over a particular farm or estate than they are at the moment, when people do not have that right.
The Law Society's view is that there is a great unmet demand and that, if the bill is passed, hundreds more people are going to pour on to land that is currently remote. Is that what you believe to be the implication of the Land Reform (Scotland) Bill?
No. It is a question of foreseeability; all the law of negligence is based on foreseeability. It is foreseeable that, because people will have the right to walk over a person's land or through their farm, injury may be caused. There is greater foreseeability when that right is exercised than when there is no right in the first place.
That is something on which we need further clarification.
I turn to the concerns that you expressed regarding night access to land. We seem to be constantly in pursuit of that elusive legal entity, the reasonable man. Would the courts not take the view that anyone wandering around unilluminated areas of land, where there is the possibility of falling into big holes and all sorts of things, would not be acting reasonably, and as such the landowner would have a defence?
The reasonable man test is applied not to the person taking access, but to the landowner. The test of reasonableness applies to the landowner or the land manager; he has to act reasonably to prevent injury or damage taking place. If people are accessing land at night, the landowner or land manager will have to act just as reasonably to prevent injury. In fact, one could almost say that the landowner will have to act more reasonably because if it is dark, it is more foreseeable that injury will be caused.
Surely the land manager could be reasonable by default. We could not have a situation where a land manager would be expected to floodlight large areas of hillside and moorland. I have a funny mental picture of Rannoch moor being illuminated by the kind of floodlights one would find at Hampden park. I am sure that there could be no requirement on a landowner or land manager to do that.
They would only have to act reasonably.
Therefore, perhaps your fear that there would be a substantial increase in liability is somewhat exaggerated.
You may think that. Time will tell. I cannot say how the courts will interpret the legislation. All I can say is that there might be greater risk as a result of that specific provision.
This is an important point. Will the Law Society give us examples of prosecutions of landowners under the Occupiers' Liability (Scotland) Act 1960? How many such prosecutions have taken place? We should have a baseline against which to measure any increase.
I am not sure that the Law Society is the right body to provide that information. Why not ask the Scottish Landowners Federation or the National Farmers Union of Scotland? They probably represent more landowners that anybody else.
Fair point. We have to conclude. I offered you the opportunity to raise at the end any points that you felt had not been included. Would you like to say anything in conclusion?
One thing on which I had expected to answer questions, but about which you have not asked me, is business use. We agree with the concern that Mr Stevenson expressed. The example of the mountain guide with two people behind him has been commonly used. Such a guide might be caught by the provisions on business use. As is so often the case, it is difficult to draw lines.
Thank you for giving us a dynamic session. Your evidence has been very helpful. Thank you for coming at such short notice.
Meeting suspended.
On resuming—
Welcome to the second part of the meeting. We continue to deal with the Land Reform (Scotland) Bill and I welcome our third set of witnesses. We have with us John Kinnaird, Craig Campbell and James Withers from the National Farmers Union of Scotland. Thank you for coming along at such short notice. We will go straight to questions. You may make any points at the end that you do not get a chance to cover during questions.
We have been considering the balance between the code and the bill. I know that the NFUS left the access forum on the basis that the code was becoming a large document, whereas your preference was for something quite small. Today and on other occasions you have heard much of the evidence on the balance in the code and it is a subject on which you have commented in the past. In the light of what other witnesses have said, will you expand on your previous remarks? In particular, have you given further consideration to whether the NFUS might rejoin the access forum?
We are actively considering rejoining the access forum.
I am delighted to hear that.
The access forum has not met for some time. We expect to rejoin the forum when it holds its next meeting.
I want to pursue that. My understanding of what was intended—if not necessarily what has happened—is that where the word "must" is used in the code it would, in effect, refer to a legal obligation that exists in statute, although not necessarily in the Land Reform (Scotland) Bill. A distinction is made through use of language, but should that be the case? Is that the case, or are you pointing to particular parts of the code that use "must"—or a similar formulation—but which do not pertain to statute?
It is important that there is a clear link between the code and the bill. At the moment, the code is purely evidential, which is something that we would like to be tidied up. It is important to have clear guidelines, because such clarity would benefit the access taker and the access provider. All along we have sought legal certainty and clarity.
Are there any specific parts of the code with which you are unhappy?
In certain instances, there is conflict between the code and the bill, which needs to be cleared up. If that were cleared up, it would solve many of the problems. I say again that if action to which the code attaches the word "must" is incorporated into the bill, the code would be a lot simpler and easier to understand.
I note what you say, which could be described as the reverse of the position of some organisations that feel that more should be included in the code. Whatever your line on that is, I am keen to know whether you have any difficulty with, or objections to, any specific parts of the code.
The generality of the code makes perfect sense, but there are questions about clarity and about how the code refers to the bill. The paper that we submitted suggests a link along the lines of that which exists between legislation and the highway code—a comparison that has been drawn a number of times. The highway code is well respected and has legal standing. We have considered the view that, by including much of the code's contents in the bill, the provisions concerned might be difficult to amend because that would require primary legislation, but if the link between the Land Reform (Scotland) Bill and the access code was similar to the link between road traffic legislation and the highway code—which is provided for under section 38 of the Road Traffic Act 1988—that might clarify the code's status, if not its content.
So if the access code were given the same status as the highway code, you would be reasonably content to keep it as it is, but with a link to the bill.
That would certainly address some of our concerns, but our overriding concern is that if something is mandatory under the code, there seems to be no reason why it cannot not be included in the bill. The link between code and bill is important, however.
It is not a general point of principle, but there are details in the code that do not easily transfer to the detail of the bill. I refer in particular to matters concerning wild camping. That is more of a tidying-up issue.
The definition of curtilage is causing some excitement. Do you feel that the bill provides adequate protection for your members' privacy?
It does up to a point; the matter of curtilage is vital. If a field comes right up to someone's house—a dwelling place in the countryside—is that field included in the curtilage? Such questions need to be clarified, but we are quite happy with what is in the bill in that regard.
I will pose another question regarding potential difficulties. People walking through the countryside perfectly lawfully could enter fields in which there are animals—for example bulls that are in a certain state of excitement. Should there be some provision in the bill to restrict access in such circumstances?
There would be no need to restrict such access if a core path network was set up. That would allow people, whether simply taking access or going about their legitimate business, to gain safe access at no risk to themselves and with no risk to or from animals or machinery.
Forgive me if the NFUS has already expressed an opinion on my next question. Do you have any views on policing of a core path network?
If a core path network is set up under the bill, we will be able clearly to differentiate between people exercising their rights and people exercising their liberty. That would remove much of the liability risk that we envisage arising from the bill as drafted. If the wording on liability that we have suggested is included, many problems would be addressed and clarity would be provided to the access taker and—to some extent—to the access provider.
I am happy to say that the vast majority of people who will seek access to the countryside will behave responsibly and will, by and large, adhere to the core paths. However, when the irresponsible minority fail to follow their obligations, how might the core path network be policed?
That is a grey area. We heard from two witnesses earlier about the difficulty of determining what constitutes trespass. There is an opportunity for the bill to clear that up for everyone. One advantage of a core path network is that it will allow for clarity, which would remove the risk of conflict.
What is in the bill as drafted does not tally with what was in the policy memorandum. The bill omits the obligation on local authorities and other public bodies to create and maintain the paths, other than those that are established under a path order. That link needs to be sorted out, lest we be faced with a situation in which local authorities say that they are not obliged to create and maintain the paths, but simply to produce a list.
Let us turn to the question of liability. You will have heard the earlier discussions on the subject. I know that the NFUS has insurance connections. Have you raised the matter with insurers?
Yes, we have. I presume that you are alluding to NFU Mutual.
Yes.
We have not consulted only NFU Mutual. Any insurance company from which we have taken opinion has been concerned about its increased risk of liability through a right of responsible access. That is why we suggested in our briefing document a wording that makes it clear that someone who accesses land does so
We welcome the fact that there is clearly a political will and a policy intention not to increase landowners' liability. That is an important point. As members have heard this morning in other evidence, there is a question about whether the bill as drafted meets the policy intention. The form of words that we suggest is generally accepted by other groups as the best way in which to define liability. In some way, it describes the current status of liability in law.
We will follow that up. Are the underwriters concerned because liability will be increased, or because the increase in the number of people who access land is likely to result in an increase in the number of accidents and a potential increase in liability? Is that the source of their concern?
The simple answer is yes. As soon as an individual is given a right of access, the occupier of the land—tenant or landowner—will have an increased duty of care. That will automatically involve an increased risk, which is why it is very important to have a core path network. We must be able to distinguish clearly between the two.
I want to be clear on this, as it is an important issue. You are saying that the problem relating to liability is not the extent of the duty and liabilities that will now devolve on property owners and land managers; rather, it is the fact that many more people will have access to the land, which will cause an increase in instances of access and introduce questions about legal liability.
Yes, but that would happen even without an increase in the number of people who take access. The duty of care in itself would increase the risk. I emphasise that the biggest risk and the biggest potential increase in liability will come in relation to enclosed land rather than open hill land, with which we have no difficulty. We have concerns about that.
You appreciate that you are at some variance with the ministerial opinion that was expressed last week.
Yes.
Is it your understanding and/or intention that your proposed redefinition of the way in which liability should be dealt with in the bill would exclude the occupier from liability that might arise from entirely natural hazards, such as cliffs, gorges and the like?
Yes. That should be the case, otherwise areas would have to be fenced off and people would be denied access to places that they would like to go. That is why it is important that we have a path network of some description. People who live in the countryside and who make their living in the countryside know and understand the everyday dangers and potential hazards. Those who take access—however frequently or infrequently—do not. That problem must be addressed. It is of major concern.
However, your understanding is that liability for certain natural hazards currently lies with the occupier.
Yes—at the moment.
Are you, in effect, proposing to change and rein in liability.
No, we are trying to get clarity. In many respects we are trying to protect access takers so that they are not put in positions of potential danger.
Before I ask any questions I should declare an interest as an NFUS member.
The NFUS position is not to oppose access, but quite the opposite. We openly welcome people to the countryside. It is important that people can come into the countryside. People are many generations away from those who made their living in or lived in the countryside, so it is important to get people back to the countryside. That would allow us to let people see what goes on in the countryside, how their food is produced and how the countryside can be enjoyed. Above all, however, that must be done safely and without risk to people, animal welfare or safe food production.
From your previous emphasis, my impression was that you are not keen for there to be access to enclosed land.
No, that is not the case. We would have no problem with access to enclosed land provided that that access is managed within a path network. That is vital. We encourage people into the countryside because it is a wonderful place to make a living and to visit, but there is a risk to people who take access—and to those who make their living there—from animals, machinery or whatever. That is why the correct way to proceed is with a core path network, so that people who live and work in the countryside and those who access it can work in harmony, and not be in potential conflict.
Therefore, your key concern is the safety of those who access the land. As we heard earlier from the Law Society of Scotland, although a law of trespass applies in Scotland, it is unenforceable. In reality, people are free to wander the land. You must have evidence on the amount of risk. How many incidents have there been in the past 10 years and how many claims have there been on the public liability insurance of individual landowners and farmers?
We do not have that information, but I am sure that we could get it. We could get information from NFU Mutual, for example, providing that it is willing to release the figures. If the committee wants information on civil cases, I am sure that the Scottish Law Commission could supply evidence of civil actions.
Could you supply facts to back up your claims?
We could ask the Scottish Law Commission.
We would be happy to do that.
Do you dispute the evidence that SNH provided from south of the border that indicated that the problem was minimal?
I dispute that evidence. It is important to distinguish what can put an access taker in great danger. South of the border, a fair core path network and rights of way exist.
That issue is crucial. As SNH said, current provision for path networks around enclosed land—particularly close to urban areas—is woeful in Scotland. I agree that the problem does not arise much south of the border, where rights of way and the path network are strong.
The key issue is liability. Do you agree with the Law Society's view on the source of the increased liability?
Yes. That is why we believe that the situation needs to be addressed. That could be done through a core path network.
The committee has discussed dispute resolution. How would that operate? Is it a practical way of addressing problems that farmers or landowners might have with walkers or with bits of land that they wish to be excluded from access rights?
The proposals would lead to conflict. That would be of no benefit to the access taker or provider. A path network would solve the problem and remove the need for remedy.
What is the logic behind your thinking that a core path network would improve dispute resolution?
If a core path network is established, people will know the position. We will have knowledge as access providers and they will have knowledge as access takers. I am also a walker, so I take access. The network would give people clear guidance about where they can go and where they can go safely. That is of paramount importance.
A network would not preclude people's taking access to inby land, so disputes might still arise.
That would not alter the current situation.
The paths would provide reassurance. People would still have the right to access enclosed land, but they would be reassured if they were on paths that their access would not be open to challenge by anyone.
The point that I am trying to get to is that the bill contains dispute resolution measures. Local authorities will establish local access forums and people will be able to go to the law, if necessary. Are you happy with those measures? The core path networks are a side issue and do not feature in such measures.
The proposed dispute resolution measures are cumbersome and would benefit no one.
What do you want instead?
Our proposals would provide clarity and give people some security and safety.
I will push you further on that point. I hear what you say about the reassurance that a core path network would give access takers and landowners. However, if walkers did not stick to the core path network, what would happen? Would landowners be able to take sanctions against such people, or would only guidance be given?
Difficulties would arise if someone misbehaved on enclosed land. Are they exercising the proposed right or are they exercising the liberty that the bill will not extinguish? It will be open to someone whom an owner cautions on whether his behaviour is responsible to say, "I'm not here using the right; I'm using my implied permit." That would return us to the present situation.
You expressed concerns about increased liability. It would be useful to hear why you think that there would be a dramatic increase, or any increase, in the number of citizens accessing their rights.
If there is a right, there is an increased duty of care on occupiers of land; one goes hand in hand with the other. We would anticipate—
I am sorry, but I think that you misunderstood my question. Why do you think that more citizens would access their rights to walk? Alternatively, do you think that there would be no difference in the numbers?
There is no indication that, if the bill is enacted, millions of people who have never accessed the countryside will suddenly hit the road, access the countryside and go on to enclosed land. We are not lawyers, but our opinion is that, by creating a right, you thereby increase the liability. The issue is not the number of people, but the duty of care. We want more people to come into the countryside, but there is no indication that they will.
I asked earlier what the underwriters say about the matter. Given that the normal premium component for the property owner's liability, which is part of a farmer's insurance policy, is minimal, do the underwriters think that there will be a significant premium increase?
That is a technical matter that I am not qualified to answer. The indication that we have had is that there would be an increase, but the underwriters have not put a figure on that. I guess that in other insurance risk situations they judge by experience. Again, I am not technically qualified to comment further.
Surely the underwriters would take the view that the risks that adhere to your trade are more likely to be in respect of fire and storm damage, for example, than is the case with a property owner's liability. They are probably not charging you much for that.
I suggest that the underwriters charge a lot for third-party liability. That large part of the premium will increase, not decrease. The underwriters have made plain that fact.
It is understandable that the premium would increase, but I question the extent of that increase.
We are not qualified to answer on the extent of that increase, as Craig Campbell said. However, there will be an increase in the premium. A large increase in the number of claims would automatically increase premiums as well, probably disproportionately to the risk.
That would be the case for any industry, if there were a high volume of claims.
Yes, but not every industry allows people access to its workplace. That situation is unique to farming. The bill will give people access to our place of work.
Surely the issue is the increased access and the increased liability because of that access right.
Sorry, could you repeat that?
You argued that not every industry gives people a right of access into the workplace. However, farmers currently do, as we heard in the Law Society's evidence. The Law Society said that the law of trespass exists but is unenforceable in Scotland. I want to clarify and quantify the extra risk that you think will be incurred. Surely NFU Mutual should be able to provide you with figures. Farmers are about to start paying their premiums for next year. As a farmer, I have not been advised that my premium will go up substantially because of the bill. It would be useful if you could seek clarification from NFU Mutual and provide that as evidence to the committee.
We would be happy to seek that clarification and provide that evidence. I take issue with the start of your question. The bill will give people a right that will not exist in other industries or manufacturing processes. That right will exist only in agriculture.
My point was that people currently access the workplace that farmers operate in. Unless there is great, unmet demand out there that is currently dammed, demand for access will not increase substantially. No one suggests, as you admitted, that it will do so.
The difference is that the bill will create a right, which will increase the duty of care. There is not a large number of claims for damage against landowners, because of limited access. However, the concern is not the number of people accessing, but the fact that a right will be created, which, legal opinion suggests, means that duty of care will increase correspondingly.
There is some dispute about that. The minister has said that it is not the Executive's intention to increase liability. However, the Law Society has told us that it does not think that the bill as drafted will meet that policy intention—the committee will take that on board. The Executive's position is consistent with your wishes, so the issue is to draft a bill that meets that policy objective.
We will be happy to supply that evidence if we can. That is why we suggest a change of wording. We agree with what the minister is saying and we welcome it. We are suggesting that a different form of wording will avoid the liability problem.
What you have said will be acknowledged. Your point has been well made. We must conclude there. You now have the chance briefly to mention anything else that you feel we should consider.
Thank you for giving us the opportunity again to answer your questions. Producers need privacy and they need to be able to produce without putting themselves, their animals, their crops, food safety or—more important—access takers and visitors at risk. We believe that that risk will increase in relation to enclosed land. We must address that issue.
Farmers have a lot to gain from part 1 of the Land Reform (Scotland) Bill. The provision of a right of access offers a real chance to get more people into the countryside. The provision of paths will be crucial to that.
Thank you for your invitation. We have had a few offers over the past five weeks and we will have to decide which ones we can respond to. We are grateful for the offer that you have made and for the evidence that you have provided today.
Thank you.
We move to our final set of witnesses. We will hear from Dave Morris of the Ramblers Association Scotland, who is supported by Alan Blackshaw. I am sure that members, like me, are keen that we should conclude at 1 o'clock. If we can keep our questions focused, that will help everybody.
Thank you for giving us the opportunity to appear here today. I will ask Alan Blackshaw to respond on the technical aspects of the issue. My main comment is that, like the majority of the population, we do not consider that there is a law of trespass. The reality is that people can take access to land and to water and the only thing that a land manager can do to restrict that is to seek interdict. As members will be aware, the public perception is that people are free to walk on land; that freedom has been recognised over many years. Alan Blackshaw may be best placed to answer the specific points in the Law Society's submission.
On the law of trespass, there is the question whether any law prevents someone from going harmlessly and lawfully on to land. Our position is that there is no such law, which is why it is the belief of everyone in Scotland that there is no law of trespass.
We seem to be clear about the fact that, apart from in the Trespass (Scotland) Act 1865, to which no one but you has referred, there appears to be no statute relevant to trespass. Other than that, we are discussing sources of information about what the law might be.
The Trespass (Scotland) Act 1865 is of the greatest significance because it was the first opportunity that Parliament had to introduce a law of trespass. If it had been the intention to make trespass an offence, that was the time to do it. Proposals were made to that effect, but a conscious decision was made to limit the provisions to encampment and fires, for example. The statutory position was settled in favour of the public back in 1865.
I do not think that we have time for that. You will note that the Law Society offered to provide us with the body of case law. My concern is that I would have liked to have known about an existing body of case law before now. If you can provide us with any information on whether such a body of case law exists, we would find that helpful.
I agree. Of course, although the writers that the Law Society has quoted—Professor Reid and Professor Gordon—are people of great authority, they are not institutional writers; they are not authoritative in the sense that earlier institutional writers, until Hume, were.
Is it misleading to refer to the common law in this context? The suggestion that what we are talking about is the common-law position has been bandied about all morning.
There are legal interpretations, but they are from the point of view of the law of property. When Tom Johnston wrote his letter about the liberty to go on land, he was talking not from the point of view of the law of property, but from the much wider point of view of public access to land. One cannot get at the issue by trying to extract opinion from books about the law of property; the committee needs a major statement on what the law on public access to land is. That is a different thing.
When was Lord Trayner's judgment made?
It was not a judgment; it was an aside. It is not in the record of evidence; it is in the summary at the beginning of the case. Lord Trayner said that the idea that there is no law of trespass is "loose and inaccurate". It is important to realise that the case was about a taxicab at Edinburgh Waverley station, which is subject to the railways legislation—specifically section 16 of the Railways Regulation Act 1840. The taxicab driver was arrested by the railway police under the provisions of that act. At issue was whether it was reasonable for the railway police to arrest him for a breach of the peace. Therefore, when you interpret what Lord Trayner said—as it is given in square brackets, it is not even clear that he said it in that case, and he may have said it somewhere entirely different—you have to have regard to the fact that the case was about commercial activity, within buildings and on operational railway land. No one is disputing that people can be trespassing in those circumstances, but that has nothing to do with harmless public access to land, which is what we are discussing and on which, so far as we know, there have been no cases.
That is clearly the difficulty. It appears that you are heavily reliant on the 1979 case of Malone v Metropolitan Police Commissioner. Lord Justice Megarry stated that what is not prohibited is permitted, but there do not seem to be any contemporary Scots judgments.
This is another point about Professor Rowan-Robertson's comments. He said that freedom to roam was not upheld by judges; I do not think that there have been any cases on freedom of access in general. The case to which he referred was about a narrow strip of land at Seton House in Aberdeen. There is no case law. The Megarry principle is one of the three or four most fundamental principles of both English and Scottish law: it runs through the totality of the common law.
When was Lord Trayner's opinion—I do not mean legal opinion—expressed?
In 1899. As I said, Lord Trayner did not express the opinion in the case; it is an editing note. He may have expressed the opinion 20 years before about something else—we do not know.
You referred to taxicabs rather than hansom-cabs. I presume that that enables us to identify the period involved.
I think it was a hansom-cab. I stand corrected on that.
We will move on to the access code.
I would like to add a comment. We talked about the law of trespass. There is clearly no law of trespass in the sense in which that term is normally used. On the rest of the civil law of trespass, there is no integrated law of trespass. It is a question of considering various other general aspects of law that are relevant to trespass. The most important is implied consent, which is in the law of obligations. That means that someone is a trespasser only if they go on land either unknown to the owner or if he effectively objects. Most people who go on land are not in those categories, so they are not trespassers. That is an important point. We take the view that most people on land are not trespassers; therefore there is a general freedom and because they are not trespassers they are on the land lawfully. There is no law of trespass in the common law, any more than there is in the statute law.
I am sure that the Ramblers Association Scotland would like to welcome, as I did, the willingness of the NFUS to continue discussions on the code in the access forum.
I welcome the NFUS's willingness to rejoin the access forum and the shift in its views on the code. I mentioned to the Rural Development Committee that we should use the highway code as a model for the outdoor access code. The highway code explains clearly that the use of the terms "must" and "must not" is related to existing statutory provisions. I differ from the NFUS on the matter. We want the bill to state that responsible access is defined in the access code and that when the code uses the terms "must" or "must not", it refers to statutory provisions.
With the exception of section 9(2)(a), which is about commercial access, section 9(2) is an example of a provision that might be removed from the bill and put into the code. I invite the witnesses' comments on that section as an example of what might be removed.
It is important to go through the bill line by line and take out measures that are, in our view, not compatible with the common-law position. From section 9(2), we would remove paragraph (a), which refers to business activities, paragraph (c), which refers to
Would you like to make similar specific suggestions about other sections?
We want the powers that are given to local authorities by section 11 to be removed. Section 12 provides a byelaw-making power over all land, which is adequate for local authority purposes. Section 11 would be a huge burden on local authorities because land managers would pressurise them continually to consider whether areas should be excluded. Section 11 is unnecessary because it is sufficient for local authorities to have an advisory and management role, although we would like them to have a power similar to that given to SNH by section 26.
Local authorities will be obliged to establish local access forums. Would an overarching national access forum relieve local authorities of some pressures? A national forum could develop general principles, which could be applied by the local access forums.
Yes. A national access forum is essential. We would like the bill to refer to that. It should be supported by SNH, as has been the case in the past. We are a little concerned by the minister's remarks in last week's meeting about the role of local access forums. We envisage those forums as strategic bodies that will discuss what is required for cycling, horse riding and walking—they will not be dispute-resolution bodies. Local authorities must be able to resolve disputes efficiently and effectively. They should not pass the ball on to the local access forums, which should have a strategic role.
I keep meaning to ask whether there are any issues for cyclists and people using land for other activities, such as sledging and driving pony traps. Do you have any concerns about the access provisions for such activities? Does the bill hinder those activities?
There is a serious problem in relation to cycling and horse riding. How people doing those activities will get through areas where there are farm buildings has still not been resolved. Farm buildings and steadings lie within the definition of curtilage. We accept that people may not wish to go through such areas and that diversionary routes need to be provided, but at the moment that is not likely to happen. No obligation is being placed on farmers to provide a diversionary route if they want people to go round farm buildings. For cyclists and horse riders, that is extremely important, because they have to use the farm tracks to gain access.
We noted that point when you made it at an earlier stage.
It is always in our minds that activities such as cycling and horse riding are provided for in the bill.
My next question relates to page 37 of the access code, which covers where to get help and information at a glance and is entitled, "Dealing with irresponsible behaviour". I asked the SNH witnesses about the line that says:
It is difficult to remove that reference. As I said in Inverness, the reality is that the police will come out. I referred to a case south of Edinburgh, where I know that the landowner does not want the right of way used. That landowner simply rings up the police and the police come—on every occasion, as far as I know. The police tell me that they are there because the landowner has said, "I have an incident on my ground." The police have to come out and investigate that incident. As things are today, the police can be called out on to the ground. Of course, what action they then take is another matter. When they have turned up, I have told them that the landowner is wasting police time and that the police have no role in such a situation.
Perhaps we should take this opportunity to put a stop to that. The police resource should not be used in those circumstances. There is no locus for the police to charge anyone where no crime is being committed. I suggest that that is an abuse of police resources. I want to try and roll back from that, but the fact that that sentence remains in the access code could encourage landowners to call the police in such situations. There is no corresponding right for the person who has been prevented from accessing the land. They cannot call the police, according to the code. Only the landowner can do that.
If the access taker had a mobile phone, they could ring the police to say that they were being intimidated by the landowner. I did that during the Fife right of way case to which John Mackay referred earlier. When I was walking up the route and was intimidated by the landowner, I called the police and discussed it with them that evening. It works both ways.
For the record, it is not stated in the code that the right applies equally to the citizen and the landowner.
Maybe there is a case for the code saying that either the access taker or the landowner could call the police if they felt the situation deserved it, particularly if behaviour was becoming intimidatory.
In earlier evidence, you suggested that you wanted a national access forum to be set up rather than local access forums. Why do you think that? It seems to me that the local access forums have a greater chance of resolving local issues than any pronouncement from on high has. Our experience during the foot-and-mouth epidemic backs up that view, as we saw clearly in my constituency, where there were problems with landowners who refused to open up paths due to the restrictions. It was the local groups coming together that resolved the problem. The minister could stand in Parliament until he was blue in the face and say that landowners should lift restrictions, but it did not solve the problem. I am intrigued as to why you suggest that a national access forum would be a better proposition than local access forums. It seems clear to me that local access forums are pivotal.
I am sorry—I do not think I explained myself correctly. I am not arguing against local access forums. I am saying that there needs to be a national access forum in addition.
As there are no further questions, would you like to make a few brief statements in conclusion?
I want to say something about the distinction between access taken under statute and that taken under liberty. That is relevant to the commercial groups issue.
You referred earlier to the Law Society's views, convener. In particular, there is viewed to be a presumption under the law that people cannot go on to other people's land. I wrote a note to the clerk about that. It would be very helpful to mention the legal cases in which that is stated. As far as we are aware, there are in fact no cases to that effect.
I thank the witnesses for coming before the committee and for their evidence.
Finally, I remind members that our next meeting is on Wednesday 13 February. We will give members a bit of slack for good behaviour and will not start at 9.30. I realise that the past five weeks have been quite an onerous burden on members—I thank you for all your hard work.
Meeting closed at 13:03.
Previous
Petition