Subordinate Legislation
Part 1 Land Reform (Scotland) Act 2003: Draft Guidance for Local Authorities and National Park Authorities (SE/2004/276)
Item 2 is consideration of subordinate legislation. I refer members to the note that has been prepared by the clerk on the draft guidance for local authorities and national park authorities under part 1 of the Land Reform (Scotland) Act 2003. Members will note that we are to consider the instrument under the negative procedure. Does any member wish to comment on the instrument?
Like, I suspect, other members, I have received correspondence from the Scottish Environment LINK access network, or LAN. I have also received correspondence from the Mountaineering Council of Scotland. From the correspondence, it appears that the instrument differs in certain material respects from the bill and from the debate on the bill.
The LAN has commented that the introduction to the order refers to access rights being
"for the purpose of open air recreation"
and that the other purposes that were set out in the act have been ignored.
The act specified that the three ways in which access rights can be exercised are "for recreational purposes", for the purposes of "relevant educational activity", or for the purposes of
"carrying on, commercially or for profit, an activity which the person exercising the right could carry on otherwise than commercially or for profit."
By restricting the order to the first of those three purposes, local authorities might not be able to meet the needs of people wishing to undertake educational activity, for example. That was one of the important things that I, other members and the Executive—the issue is not the sole prerogative of the Opposition—wanted to entrench in the bill when it was passed by the Parliament. I am baffled by the situation.
The LAN also makes the point that the drafts that were submitted for consultation were drafted in a different way. A number of the points that the LAN raises have made their way into the instrument only in the final version. However, there has not been the opportunity to respond, in the consultation, to other specific phrases that are used in the final version. I think that that is the fundamental point. There are other, detailed points, but I want the Executive to think very carefully about the way in which the instrument has been drafted, to withdraw it and to bring it back quite quickly in a form that is much more in line with both the spirit of the act and the particular descriptions in the act that we passed to cross-party acclaim in 2003.
I should say that in attendance in the public gallery are officials who, I believe, are able to answer questions if members have any. It would be helpful if they were able to talk to the committee.
Like Stewart Stevenson, I have some concerns about the draft guidance, especially regarding the core paths plan. He and I are at an advantage, as we were involved in the passage of the Land Reform (Scotland) Act 2003. I was keen to ensure that access to land did not necessarily have to be taken through core paths; I thought that it was important to have a core paths plan to give easy access, but I did not want that to be the main way in which people took access. People want just to wander through the countryside. The LAN is suggesting that the draft guidance puts too much emphasis on the core paths plan. If that is the case, I am unhappy about that. I believe that we passed legislation to give people access rights to roam the countryside responsibly. The fact that we encourage the core paths plan is almost incidental to that. Can the Executive officials give a response to the points that have been made so far?
Ian Hooper (Scottish Executive Environment and Rural Affairs Department):
Good morning. I am Ian Hooper, from the countryside and natural heritage division, and my colleague is Malcolm Duce.
This issue is quite complex, and there has been quite a lot of pressure from local authorities and others to have guidance on how they should carry out their responsibilities. What we are discussing is guidance and although it comes to this committee because of the terms of the legislation, the legislation itself takes precedence over the guidance. The guidance is intended to help local authorities with the business of implementing the access provisions. We accept that we may have to return to the guidance at a future date, in the light of experience, as we do not yet really have anything to inform the guidance beyond a rather theoretical consideration of what might cause difficulty for local authorities or others.
The guidance probably focuses on the essential elements in the first phase of the implementation of the access provisions, and I accept that, in an attempt to respond to the comments that we have received from local authorities, we have included in the guidance some words about the core path network. Because we were asked to give guidance on what the core path network might mean—what a core path might be—the guidance talks about it as the core framework for giving access throughout an area. We hope that that is constructive; however, as I say, the matter can be revisited in fresh guidance in the light of experience.
I wonder whether you recall that, as early as the stage 1 report and then in the debates at stage 2 and stage 3, one of the provisions about which there were key concerns was section 9—as it was at that stage—which listed the exclusions. One of the key exclusions, which was deleted as a result of a debate in which people were seriously engaged, was that of commercial activities. It is perhaps not unreasonable for there to be a certain amount of paranoia if the draft order is put out for consultation and it is only in the final expression of that draft order that it drops commercial access from the rights and relates the guidance to access
"for the purpose of open air recreation"
alone.
There has to be grave discomfort if the order is meant to express the context within which the guidance is supposed to operate but, at the very last moment—not as part of the consultation, but in the publication of the final draft after the consultation—a specific phrase is introduced that appears to limit the application of the secondary legislation to access for recreational purposes. That is despite the fact that there was so much debate on the issue without any particular party-political bias—the debate was engaged in by people of a variety of political persuasions.
If you do not feel that the guidance should be withdrawn and re-presented, at least to reflect more properly what is in section 1(3) of the 2003 act, the option exists for us to lodge a motion to annul the instrument. However, it would be far better for the Executive to reconsider its position on the matter, as that would enable a quick response to concerns. You suggest that we wait and see how the guidance operates; however, I suggest that we will not see how it operates for at least a calendar year—probably longer—and that we would be starting off on the wrong foot. The exclusion of commercial activity used up an awful lot of debating time at every stage of the bill and, ultimately, there was broad acceptance of the fact that that was not the bill's intention; however, it appears that that exclusion has come back. That makes me most uncomfortable.
I reiterate that that is not the intention of the guidance. The guidance is for local authorities. It may be that, in attempting a shorthand version of what the right of access is about in the introduction to the guidance, we have fallen into the trap that you describe. However, I do not believe that it will lead to the confusion that you describe, because of what is in the rest of the guidance and the access code, which sets out what the right of responsible access amounts to and which is a document that local authorities will look at as well as the guidance, as it is specifically about how they should conduct themselves.
I have a short and focused question. Why does the phrase appear only in the version of the guidance that has been brought to Parliament and not in the draft version that was put out for consultation? What caused the introduction of that phrase into the final version? Who was responsible for that?
As a result of the consultation, we were asked to provide a brief summary at the beginning of the guidance, and therefore we provided a one-page summary as part of the introduction section. That was something that consultees asked us to do and I suspect that we have over-compressed the summary in the introduction. I do not believe that the guidance that follows on from the introduction conveys the restriction that you are describing. Certainly, the access code, which the Parliament has approved, does not convey that restriction. Local authorities will consider the guidance and the access code in detail when carrying out their responsibilities.
I have a general point to raise, although I do not know if it is an appropriate question to ask officials. It appears that there is still concern in Perth and Kinross Council about the resources required. I wonder whether we can write to the Executive about that point to see where we are with it. We cannot really talk to the officials about it at this stage but if the resources are not in place, it is questionable whether what we want to happen will happen. Perth and Kinross Council have concerns about that, as do people from the LAN.
I have no difficulty with that suggestion but my primary concern is that the guidance should not give the impression that the core path network is necessary. It is desirable but, for the code to operate, it is not necessary. The question of funding has been on-going since the introduction of the bill and local authorities have been concerned about the cost to them.
How confident are the Executive officials that the consultation responses agree that the draft guidance reflects the balance that we need?
My preliminary comment is that the bill gives us the power to issue guidance to local authorities, and we considered whether we needed to do so, given that the legislation spells out the rights of access in detail and that the access code explains them further.
However, a lot of local authorities asked us for help in understanding how they should carry out their duties and responsibilities. That is why we produced a draft of the guidance. I am not sure whether I am answering your question directly, but that is a sort of historical explanation. We are responding to local authorities that want to understand a complex range of duties and responsibilities under the primary legislation. They also want to understand how those duties and responsibilities relate to the access code. We have tried to express that in the guidance.
As with the access code itself, there has been an encouraging consensus about how to proceed. We have simply tried to respond to a request from local authorities and others for a bit of clarity about what the duties amount to.
I can see that you are responding to the demands of local authorities. At the end of the day, they are still required to protect the access code and implement the legislation, so the guidance ought to match directly the primary legislation. That is the difficulty. Organisations are telling us that the draft guidance is subtly different from the 2003 act, but subtlety is important on the issue.
For example, the LAN mentioned the lack of reference to the reform of the common agricultural policy in relation to the issue of field margins and whether people can access them. When we considered the Land Reform (Scotland) Bill, we were told that farmers were ploughing to the very end of fields, but that the issue would be resolved because CAP reform would eventually take that into account and pay farmers for not ploughing the margins in order to allow access. Those issues are not mentioned in the draft guidance for local authorities, which will lead to arguments that will end up in the local access forums. The local authorities will rely on the guidance, but the access takers will rely on the access code or the primary legislation. Do you accept that arguments might result if the guidance is not entirely in step with the code?
I see your point, but we were faced with a dilemma because local authorities asked for further interpretation of the legislation, although one might argue that it was already clear. The draft guidance tries to explain to them how they should carry out their duties and responsibilities.
On the CAP reform issue, we have a bit of a timing problem. The most relevant proposal that is referred to in the LAN's evidence to the committee has not yet been formally promulgated. That is the proposal that, through the land management contract menu, land managers will be able to obtain funding to maintain and improve paths on their properties. The LAN is interested in that proposal, as are we, but we cannot include details of the proposal in the guidance simply because it has not yet been formally promulgated.
Under the reformed agricultural regime, it is a requirement of good agricultural practice to maintain field margins and that matter will be considered by agricultural inspectors. A process exists for ensuring that field margins are maintained because that is a condition of farmers receiving single farm payments.
Section 4 of the 2003 act gives ministers the power to modify certain sections of the act. Section 4(2) states:
"They may do so generally … or by making provision which relates to particular areas, locations or classes of land or"—
this is the important point—
"to particular access rights or particular activities which may take place in the exercise of access rights".
Given that the order is limited to recreational purposes and excludes educational and business activities, are you using the power in section 4 of the 2003 act to change the way in which those rights may be exercised or otherwise under other sections of the act? There appears to be a danger that the Executive, through an instrument of the Parliament by ministers' order, may be changing the purposes for which access may be granted, as is legitimate under the 2003 act, by excluding some of the purposes that are in the act.
I do not believe that we are doing that, because a modification under section 4 would require an instrument that would be dealt with under the affirmative procedure—a modification order—and that would have to be approved by the Parliament. The draft guidance is not a statutory instrument or order; it is simply guidance that the legislation requires us to bring to the Parliament so that the Parliament can decide whether to reject it. The answer to your question is that I do not believe that the guidance has modified in any way the legislation and the rights that are defined by it.
I agree that that was probably the intention, but my recollection of the debate is that we were arguing about the words that were to go in the bill. There was disagreement over whether we referred to statutory rights of access or whatever—we eventually settled on something. We do not want to continue the misuse of language in the draft guidance by inaccurately describing access, although I accept your main point that local authorities must ultimately abide by the primary legislation.
I have not read the introduction to the guidance, so this may already be there, but surely your first note of guidance to local authorities should be that they have a responsibility to implement primary legislation—full stop. It is their duty to do that and to ensure that they have checked the requirements of the act and the access code to implement it. The purpose of the guidance is to provide easy access. Is that in the introduction?
It is not and I accept that we could have put it in. We have operated on the basis that there is an understanding between central Government and local government about the way in which these things operate and that local government in a corporate sense understands that its responsibilities are defined by statute and are not reinterpreted by the guidance. I accept that it would have been helpful had we done what you suggest.
As I said, the introduction was included at a late stage because of the requests that we received in the consultation for a brief summary of the guidance. One of the responses was, "This guidance is very long and it's very hard to understand. We would like to be able to take it to our committees and have a summary of what the guidance is there to do." In providing that summary, I am afraid that we over-compressed the point, but not with any intention of reinterpreting the legislation.
A number of issues have been brought to my attention and that of other committee members, but for me the sticking point with the guidance's introduction is the fact that it is limited to one of the three purposes. The guidance should list all three purposes; the omission of education and commercial purposes seems to signal a lower priority. That is the most charitable way of expressing my point.
You make the fair point that we are dealing with guidance, not a reinterpretation of the act. I would not wish with the same vigour to push other points, but there is the need to state with utter clarity what the rights are, in view of the debate at every stage of our consideration of the Land Reform (Scotland) Bill. If you are not prepared to indicate a preparedness to reconsider the guidance, I will seek to identify what parliamentary actions can be taken to ensure that such a change is made.
We clearly have some issues. I am reluctant to jump to the conclusion that we should annul the guidance. In fact, we have been urged not to do that, because people want to see the whole thing through. However, I am reluctant to just let it go when there are issues.
One matter that I have not yet mentioned is local authorities' duty to uphold access rights. I appreciate that this is only Scottish Environment LINK's interpretation, but that organisation's concern is that the guidance emphasises dialogue and consensus building rather than removing obstructions.
I accept that the legislation requires dialogue and consensus building, but I also know that it is the type of legislation that requires local authorities to take firm action—local authorities must remove obstacles in order to uphold access rights. I can think of cases in which that would be expected to happen. We all know that, during the foot-and-mouth crisis, whole areas were sectioned off for no apparent reason. We expect local authorities to take firm action under the legislation. If Scottish Environment LINK's interpretation is correct, I have serious concerns.
If the committee wanted to take action, it would have to meet next Wednesday, when a meeting is not scheduled, because we have arranged a seminar in place of a meeting. We would have to schedule a meeting before the seminar. I suggest that we collate our concerns and write to the minister today to try to obtain a quick response. I have described the timetable to which we are operating. Any motion to annul would have to be considered at a meeting next Wednesday.
The main concern that you raise with us is about the introduction. We do not accept Scottish Environment LINK's comment that it is insufficiently clear to local authorities that they must uphold access rights. It is interesting that the evidence that the committee has received from the Scottish Rural Property and Business Association is that the guidance emphasises that point too much.
Your main concern is with the introduction. If it helps the committee, I will be happy to return to ministers and to talk to our lawyers about the implications of amending the introduction. I accept that in an attempt to provide a summary introduction, we have inadvertently over-compressed the legislation.
I am happy with that. I am not as au fait with the subject as the convener and Stewart Stevenson are, as they scrutinised the bill, but what Mr Hooper has said suggests that the situation is unsatisfactory. Any clarification that can be obtained within seven days would be useful. If Mr Hooper examined the issue and returned with something to allay people's concerns, that would be the best way forward.
That suggestion is helpful. Our primary aim is for the introduction to make it clear that the responsibility lies with local authorities to implement the primary legislation to the letter and that the guidance is intended to provide a short cut to some of the 2003 act's main provisions. Is Stewart Stevenson happy with the suggestion?
I want ministers to be asked whether they are prepared to lay the guidance again with mention of the three purposes. I have other concerns, but they would not lead me to seek to annul the instrument. However, I certainly want to hear what the minister has to say about the potential for laying the guidance again.
I recognise the need to consult lawyers. That is perfectly proper, but it should not cause a delay of more than a few weeks at the most. If we got off on the wrong foot, that would send the wrong signal, particularly as the issue was at the core of the debate. If I have not received an adequate response within the appropriate timescale, I will be prepared to lodge a motion to annul. The earliest possible indication—however informal—would be mutually advantageous.
We have had a helpful offer, but there are still legitimate concerns, about which the committee should write to the minister today. We have a week, which is not long. We could pencil in a short meeting prior to the seminar; that meeting would be required only if a member lodges a motion to annul, but I hope that we will have a reply from the minister before then, which would allow committee members to decide what action they wished to take. Are there any other issues to which committee members want to alert the minister or should we simply use the list that we have?
We should include the general point that I made on Perth and Kinross Council's concern about resources.
We will include Margaret Smith's point about the funding of the core path network.
I thank Ian Hooper and Malcolm Duce for attending. It has been helpful to have you here. How we will know how you have got on with the lawyers? Will you write to us and advise us?
I will get in touch with the committee clerk. I am thinking about whether it would be possible to rewrite a preamble paragraph without its being treated as part of the formal guidance. We will explore that and get back to you.
Act of Sederunt (Fees of Sheriff Officers) 2004 (SSI 2004/513)
That leads us on to item 3. I refer members to the correspondence from the Lord President's office on the Act of Sederunt (Fees of Sheriff Officers) 2004. Committee members will recall that we considered the instrument at our previous meeting and asked for an indication as to why the increases in fees were as they are. The instrument is subject to the negative procedure. It was laid on 30 November and is subject to annulment under the Parliament's standing orders. Stewart Stevenson raised the issue, so I ask him to comment first, if he has any comment to make.
I am reasonably content, now that I can see the explanation. The real point is that, when such instruments are produced, explanations should be provided in the first instance. I hope that that will be noted for future reference.
The note from the Lord President's office is helpful for our understanding of the increase. Is the committee satisfied to note the instrument?
Members indicated agreement.