Justice 1 Committee, 30 Jun 2004

Meeting date: Wednesday, June 30, 2004

Official Report 216KB pdf

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Subordinate Legislation

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Scottish Outdoor Access Code:<br />Proposed Code (SE/2004/101)

Good morning and welcome to the 26th meeting in 2004 of the Justice 1 Committee. In fact, it is the last meeting before the summer recess and perhaps the last meeting that will be held in this room. It might even be the last meeting to be held in this building.

I remind members to turn off their mobile phones and pagers and I apologise for the late start. We had an unusually large number of late papers this morning and I wanted to ensure that members had all the papers they would need for the meeting. I have received apologies from Margaret Mitchell, who will not be joining us today, and from Michael Matheson, who is at another meeting but who hopes to join us soon.

Our first item of business is subordinate legislation. I welcome Allan Wilson, Deputy Minister for Environment and Rural Development, who will be taking part in our proceedings for the subordinate legislation process. I refer members to the note that has been prepared by the clerk on the proposed Scottish outdoor access code, and to a number of submissions that have been received. Members will be aware that we issued a call for evidence on the access code; we have received a number of helpful submissions.

Without further ado, I invite the minister to speak to and move motion S2M-1455.

It is good to be back, convener. I felt all emotional when I heard your opening remarks. With me today are Ian Melville, who is from the Executive department that was responsible for the production of the code, and Richard Davison from Scottish Natural Heritage. I hope that they will be able to help out if there are issues on which I cannot answer members' questions.

It might be helpful if I give a brief résumé of how we arrived where we are with the code. Section 10 of the Land Reform (Scotland) Act 2003 placed a duty on SNH to draw up the Scottish outdoor access code. SNH set about that exercise in partnership with the access forum, so I take the opportunity that today's meeting affords me to acknowledge the hard work that has been put into preparation of the proposed code by both SNH and the access forum. A draft of the code was issued for public consultation last year, to which SNH received some 1,300 responses. SNH revised the draft in the light of those responses, again in discussion with the access forum, before submitting it to ministers.

As members know, the Land Reform (Scotland) Act 2003 allows ministers to approve the code as received from SNH, to amend it or to reject it. We clearly have no reason to reject it and we did not consider that it would have been appropriate to upset the balance of the code by unnecessarily altering wording, particularly where the wording is the result of long debate in the access forum. Our approach has therefore been to do no more than ensure that the code is consistent with the statutory policy and with the operational requirements of public bodies. For example, issues that are specific to the management of Ministry of Defence land had not been fully addressed, so we have agreed a number of amendments on that with SNH. We have also tried to clarify some perceived ambiguities in the code.

I assure members that we have sought to keep amendments to a minimum, and both we and SNH are satisfied that none of the changes will affect the principles that underlie the proposed code. We have made available to the committee and to the access forum a version of the code with our amendments highlighted. I hope that members have found that to be helpful. That substantiates my assurance that nothing that we seek to do will diminish or enhance the legislative intent of Parliament in relation to securing wider rights of responsible access.

The code is a central element of the new arrangements for access, so it is important that we take as many people as possible with us on the detail of the code. That is why it has taken some time to produce the code, but the inclusive approach that SNH has adopted on our behalf has resulted in a code that attracts wide support. I know that the committee has received submissions from interested parties and that some concerns exist—no doubt the committee will want to raise some of the issues this morning.

I was pleased to note that the Mountaineering Council of Scotland, which represents recreational interests, and the National Farmers Union Scotland, which represents land management interests, both welcomed the amendment that we introduced before bringing the code to Parliament. I welcome the fact that there is such general agreement that the code be approved.

I am satisfied that the proposed code sets out clearly the responsibilities of those who exercise access rights and those who manage land, and that as such it sets out a sound basis for the new access arrangements that were established by Parliament in the Land Reform (Scotland) Act 2003.

I have much pleasure in moving motion S2M-1455. I will be happy to answer any questions.

I move,

That the Justice 1 Committee recommends that the Scottish Outdoor Access Code: Proposed Code (SE/2004/101) be approved.

Thank you very much. We also put on record our thanks to SNH and to the access forum. We are aware of the hard work that has gone into preparing the code and we know that it has not been easy to balance the interests of access takers and land managers, so credit is due to them.

I will refer to the timetable for presenting our report to Parliament; the minister may wish to comment. We have been asked to report by 6 September. As the minister will know, we go into recess at the end of this week and the committee will not meet over the summer. We must determine whether we are in a position to report to Parliament tomorrow or whether we need longer to report before 6 September.

I can see that there might be two interests. One would favour putting the code before Parliament tomorrow but, although there is general agreement that we want to move as speedily as possible, there are—as the minister said—some points that people would like to put to the committee. The interest of having enough time to put a report together is set against the interest of getting the code approved as quickly as possible. Although some people would say that we are in the middle of summer, most would doubt it. Can the minister guide us on the timetable issue?

We discussed the matter informally but briefly. I have sympathy with the committee's predicament, but I do not set the parliamentary timetable. If the code is approved before the summer recess, we hope to be able to bring access rights into effect later in the year. If approval of the code is delayed until we come back to the new building in September, the legislation will not come into effect before the early part of 2005. There is an imperative, and members must decide how that fits in with the committee's timetable.

It is important that the general public and land management interests be aware of their new responsibilities before the new arrangements come into effect. Those are the wider considerations; however, I sympathise with the committee's predicament.

Thank you. That is helpful.

I will focus on an issue—access to railway lines and crossing of railway lines—that has been of concern to the Ramblers Association Scotland, the Mountaineering Council of Scotland and other outdoor organisations and recreation bodies. Do you believe, as I do and as those organisations do, that the term "contiguous" land within section 10(1)(d) of the Land Reform (Scotland) Act 2003 applies to Network Rail and that therefore ramblers, climbers and so on should have access—with appropriate direction and safety measures in place—to cross railway lines at appropriate and safe points?

That is a difficult and sensitive issue. On the one hand, I am sure that you are aware that members of the public have crossed railway lines safely and responsibly for years, but on the other hand, people are killed on railway lines every year and the railway operators have a duty in respect of public safety. Today, we are discussing the access code and it is clearly not the code's job to resolve that issue.

However, the code sets down certain principles that are relevant to the matter. Railway lines are excluded from access rights, but the code places a responsibility on all owners of excluded land to take account of the exercise of access rights over neighbouring land in the management and use of their land. Wherever possible, that means that management of excluded land should, among other considerations, respect any rights of way or customary access across land. That is, I think, the point that Stewart Maxwell makes. Other stipulations are attached to that provision.

In short, it is not for the code to seek to influence land managers to act contrary to their duties under health and safety legislation, but paragraph 4.24 of the code advises that, when managing land such as a railway, land managers should take account of contiguous land on which the public may exercise access rights. I think that that addresses the specific point that Mr Maxwell raised.

For the sake of absolute clarity, do you therefore agree that Network Rail is not outwith the scope of the section of the act that I mentioned?

The code says that we can advise land managers on the exercise of their responsibilities in relation to access. We have discussed the issue with colleagues in the Enterprise, Transport and Lifelong Learning Department and with representatives from Network Rail and Her Majesty's railway inspectorate. Network Rail has real concerns about the public safety implications of unauthorised use of some private crossings, and the inspectorate has made it clear that Network Rail is expected to act on those concerns. We have explored with it and SNH the wording of the code on the management of railway infrastructure that is excluded from access rights by the act. We do not consider it to be appropriate to go beyond what is included in paragraph 4.24 of the code, which requires those who manage land that is excluded from access rights to take account of how their management might affect the exercise of access rights over neighbouring land. That is a clear reference to Network Rail in the context in which Mr Maxwell raised it.

I understand what you are saying and I appreciate Network Rail's difficulties and responsibilities in relation to safety, particularly with respect to people crossing railway lines. However, recreation bodies have said that we are talking about some extremely rural and remote areas that railway lines cross where there has been a traditional right of access to cross such lines for generations. We could be talking about there being 20 trains a day while there is clearly a right of access for people to cross roads that tens of thousands of cars go up and down. I am sure that you understand the frustration of recreation bodies. People can cross roads that are much more dangerous than railway lines, but there seems to be a problem with Network Rail accepting that viewpoint.

Do you agree that part of the problem is that Network Rail, which is a United Kingdom-wide body, does not understand the different arrangements in Scotland—particularly its separate laws and Government guidance—and that a separate rail infrastructure in Scotland would probably get round the problem?

No. You are right to press an issue of concern to recreational users of land—I do not have a problem with that—but a system of co-management operates, and we have not had the experience with Network Rail that you describe. As I have said, the issue is not straightforward. Railway lines can pose a real physical barrier to the enjoyment of some areas of Scotland—I understand that and I know that Stewart Maxwell does not mean to suggest otherwise—but we cannot ignore issues of public safety. Therefore, I welcome the recent initiative by the chairman of the access forum, who is encouraging Network Rail to work in partnership with recreation bodies, local authorities and Government agencies to address the issue. I hope that progress can be made by those different interests working together within the general guidance that we have set out in the Scottish outdoor access code.

I understand that risk assessments are being carried out for all railway crossings. That seems to be a sensible approach to the question about the amount of use of the lines in question. The level of risk that is associated with a particular crossing will depend on a number of factors, including amount of use, frequency of trains and visibility along the track. It is not for me to generalise. It is sensible to have individual risk assessments in areas in which there is conflict and that is an approach that I encourage.

I do not disagree with that statement. If those risk assessments can be made relatively speedily, perhaps all interests can be addressed. I suspect that the relative risk of crossing some lines is very low.

I assure you that, through our agencies and officials, we will continue to press Network Rail to address such issues.

I will ask about updating the Scottish outdoor access code. Can you offer the committee clarification on the timescales for reviewing the code and on whether Scottish Natural Heritage or the Scottish Executive will be able to produce interim guidance notes when changes are made to relevant legislation? That second issue has been highlighted by the Scottish Countryside Rangers Association.

As required by the 2003 act, SNH will keep the code under review. That will be a constant process because review will happen as issues arise. The access forum will play an important role in the process. Any proposed amendments that come out of a review will have to be consulted on then approved by ministers and Parliament. I cannot give a specific timescale; the code will be updated as appropriate.

So you are saying that the code will be kept constantly under review.

Yes.

The Mountaineering Council of Scotland raises a number of questions about the procedure for updating the code. What role will the access forum play in updating the code and will there be consultation on any suggested rewording of it? You have answered that question, but could you state for the record that that would be the case?

Yes. As I have just said, the process would be that SNH would review the code in consultation with the access forum and that any amendments would go to ministers and then to Parliament.

Would that ever change? Would it be a constant process?

Yes, it would be a continuing process. It has not been determined whether there will be an absolute review at some point in the future.

I will ask about access to land on which crops are growing. You might recall that we had a lengthy discussion on that during the passage of the bill, and that that discussion resulted in a satisfactory conclusion.

Several organisations have asked whether the right of access would apply to tram lines or tracks. I note that the code uses the word "tracks" but not the words "tram lines". When we questioned you at stage 2 of the bill, you said that it was possible to use tram lines as a way of passing through a field without damaging crops. Should we have used the words "tram lines" in the code, or does "tracks" mean tram lines?

I re-emphasise what I said earlier. Nothing in the code

"will diminish or enhance legislative intent"

in relation to exercise of responsible access. The access forum considered in detail whether the code should refer to tram lines, but concluded that they are covered by the general wording of "unsown ground", which reflects the wording in the legislation that we pored over at stage 2. The code sets out the ways in which people can exercise access rights responsibly over land on which crops are grown and emphasises the need to avoid damage to crops.

It would be inconsistent to attempt to exclude tram lines from access rights through the code when the legislation allows for responsible exercise of access rights over unsown ground, including tram lines. I hope that that is clear enough. The code reflects the legislation, which provides that access rights can be exercised responsibly over land on which crops have not been sown. The code also provides advice on how to avoid damaging crops when exercising access rights. I hope that that gives you the assurance that you seek.

So, someone can exercise their right to responsible access over tram lines.

Yes—I am sorry if I did not make that clear.

I just needed to be sure because there are cases for and against that. Some evidence has said that people should be expressly forbidden from crossing tram lines. However, I am clear that the matter is about responsible access and about taking that access without damaging crops. The code is one way we can ensure that people hold to that principle.

I would like to go back to basics. I confess that I am quite new to scrutiny of this subject, but I was lucky enough to have lunch with some farmers at the Royal Highland Show on Friday, and access to working farms was of interest to them. There seem to be some inconsistencies in the code—which have been picked up on by the NFUS and others—especially in relation to access to farmyards and fields that have animals in them. For the record, what do you think the code says on such areas? The NFUS, among others, believes that the code is inconsistent on both those issues and there is some confusion among farmers.

I always get concerned when members talk about going back to basics.

It is a Liberal interpretation of going back to basics. Do not worry.

I am pleased to hear that. You highlight something that we discussed at great length and in considerable detail at various stages of the passage of the bill. The proposed code reflects the statement in the legislation that land that forms the curtilage of a building is excluded from access rights unless either there is a right of way or the landowner has given prior consent. That was a matter of some contention; it remains a matter for—I hope—proper consultation and agreement in areas where people have customarily enjoyed access through farmyards without let or hindrance. We expect that to continue. The use of the phrase "customary access" in this context refers to the public having had access through many farmyards in the past. There is no reason why that should not continue.

That said, the discussions between SNH and the Health and Safety Executive centred on concerns about safety in working farmyards. SNH redrafted a paragraph to make it clear that although access rights do not extend to farmyards, if the land manager has allowed access in the past, it may be possible to continue to use the route on the same basis. SNH has retained the term "customary access", to which I referred. That was requested by recreational interests to reflect situations in which access has historically been enjoyed. As I say, there is no intent to diminish such access in any way.

I am also aware of the concerns that biosecurity may be threatened and that liability may be increased. Again, I reassure members that nothing in the code would lead to that conclusion. The legislative intent on liability is laid out in the Land Reform (Scotland) Act 2003. The access code can work in concert with existing codes on good agricultural practice, particularly in relation to biosecurity. There is no conflict between the two and nothing in the code will increase liability on farmers, landowners or land managers.

In effect, there will be no increase in landowners' or land managers' liability compared to the common-law situation before the bill was passed.

That is precisely correct.

The Environment and Rural Development Committee asked us to clarify that point on the record because it had residual concerns about the matter.

Obviously, the publicity about the access code and about what people can and cannot do will be crucial. You gave the example of somebody going across a farmyard and you talked about customary access. That may be fine for members of the Ramblers Association who are walking with maps in an area that they have traversed before, but for a family on holiday in the Highlands for the first time in an area that they do not know, a rule about what is customary is not good enough—we need something clear for such people. I wonder about signage: will there be guidance to landowners about what is acceptable signage? Given that you are trying to encourage people to use the right to roam and to get out into the countryside, how will you publicise the code to the population at large?

Those are good questions, if you do not mind me saying so.

You can say that if you like.

To go back to basics, I am satisfied that section 5(2) of the 2003 act achieves the aim that liability on landowners should not increase because of the legislation. The proposed code states clearly that the outdoors is a working environment and that it is therefore, by definition, not risk free. It further advises that those who exercise access rights should take responsibility for their actions.

The 2003 act imposes a duty on SNH and on local authorities to publicise the code to access takers. That must be associated with a wider education programme—I see that my colleague from SNH is nodding in agreement. There is an additional duty on SNH to promote understanding of the code, which is the point that Margaret Smith asked about. Once the code is approved, a summary version will be prepared and circulated widely. A major campaign is planned to alert the public and land managers to their responsibilities. The point that Margaret Smith raised will be addressed through widespread circulation of a summary of the code and through an educational publicity campaign to make more people aware of the code, whether they are access takers, recreational users, land managers or landowners.

I also asked about signage.

I am sorry—I forgot about that. SNH will engage in discussions in order to produce guidance on appropriate signage. The Environment and Rural Development Committee mentioned that to us and we are happy to work on the matter because the point was well made.

That is also a point that the Environment and Rural Development Committee made to us. We will use that committee's report when we draw up our report.

Access for disabled people is one issue that has caused concern. The Fieldfare Trust points out that the code makes no substantive mention of the needs of disabled people, despite a specific mention in the 2003 act. The trust's submission states:

"The Code itself could become a deterrent to disabled people venturing into the countryside if it gives the impression that the measure of the reasonable behaviour … is set by people without disabilities".

Is the trust right to be concerned? Is there a danger of that happening?

Disabled people are included within access rights, but I agree that it is important that land managers recognise their needs. The code refers to the need to consider all users, which obviously includes the disabled. Where land managers provide facilities for access, they may need to ensure that the arrangements meet the requirements of the Disability Discrimination Act 1995. However, that is a matter for law rather than for the code.

Under the Land Reform (Scotland) Act 2003, the main responsibility for access provisions falls on local authorities, which are aware of their duties under the DDA. We intend to reinforce that through guidance so that there can be no dubiety about how the provisions apply to access for the disabled. I hope that those actions, not least the guidance that we will issue to local authorities, will satisfy the concerns of the Fieldfare Trust and others.

That takes care of the concern that has been raised about the role of local authorities.

You said that the code mentions the need to consider all users. However, the Fieldfare Trust suggests that the code should include specific examples that refer to, and cover the needs of, disabled people. Would it not be better if the code was refined in that way?

Examples would not apply to all users. Perhaps the code could say more on the issue, but it refers to the need to consider all users, which obviously includes the disabled. That should address those concerns. The concerns should be addressed further in the guidance that we will issue to local authorities, which will have responsibility for things such as the core path network.

Returning to the issue of field margins for just a minute, I welcome the fact that the code encourages land managers to leave uncultivated margins around fields to assist access. Field margins also help to encourage habitats for new wildlife. At stage 2 of the Land Reform (Scotland) Bill, we debated whether a requirement for uncultivated field margins could be included given that a condition of common agricultural policy support is that land be in good agricultural and environmental condition. Do you intend to raise that matter in the CAP reform discussions?

As members are probably aware, I have advised the Environment and Rural Development Committee that we are consulting on what should constitute good agricultural and environmental condition and the format of land maintenance that should be required for farmers to secure entitlement to the single farm payment that is being introduced as a consequence of CAP reform. Within that broader context of consultation, in the immediate future and further along the line we will consider issues such as field margins.

In discussions, Scottish Environment LINK has made a useful contribution to that debate by suggesting how the agricultural and environmental condition could be beneficial both to recreational interests and to the preservation of wildlife and the better maintenance of biodiversity. Field margins have an important contribution to make to that.

My question, which is more precise, relates to recreational activities, with specific regard to golf courses. I should probably declare an interest as I am a member of Ravelston golf club. Last night, I was at a meeting in Carricknowe golf club in my constituency. There is an on-going problem about people walking across the golf course; club members are concerned about that in relation to safety.

On the question of customary access, there seems to be inconsistency of approach. The Scottish Golf Union considers that references in the code to customary access to golf courses for sledging, for example, should be removed because the Land Reform (Scotland) Act 2003 excludes such activities. In contrast, the Ramblers Association would like clarification that people can take part in certain activities on golf courses. Could you clarify that situation?

The code says that people can exercise access rights to cross a golf course but that, wherever possible, land managers should

"provide paths around or across the course and/or advise people on the safest ways through the course … to minimise safety risks."

On a more general point, will councils, other land managers and so on have access to any funding to assist them to provide paths? As you can imagine, a path around a golf course would be rather a large undertaking. Even putting up fencing to minimise safety problems would be a significant task. Can organisations access any funding to assist them?

Yes. Some additional resource has been allocated to SNH for furthering responsible access. Likewise, local authorities have been given funding for the creation of the core path network and facilitating wider responsible access.

The golf course example that you gave is an example of a situation in which I would hope that common sense would prevail and proper local management would ensure that responsible access takers are not put at risk of being struck in the head by a flying golf ball and are instead assisted in the exercise of their access rights when they want to cross a golf course. Equally, however, it should be possible to maintain the fabric of the golf course and continue the game of golf without interruption. Further, where there has been access to the golf course for the purposes of sledging, that would be maintained.

The general point prevails that nothing in the code diminishes or enhances the legislative intention of Parliament in relation to the exercising of the right of responsible access.

I support that view; common sense should prevail and it is not possible to include absolutely everything in a code or an act. I have always been keen to ensure that the creation of statutory rights of access does not negate any pre-existing common-law rights. There is always a balance to be struck. One of the issues that was raised with the committee at an early stage was that it was perfectly legitimate for some golf clubs to make a big issue out of sledging, but that for others—for example, those that have flat courses—sledging was not an issue. I think that the code has got the balance right.

The issue is responsible access taking. If people exercise their access rights irresponsibly, they are clearly not adhering to the provisions of the act or the code.

I could not have put it better myself.

I am sure that you could.

I did not realise that sledging across golf courses was such a big issue. It takes me back to the times when I sledged down the King's Park nine-hole municipal course when I was a bit younger.

I want to ask a question about railways. Groups such as the Activity Scotland Association have suggested that the code should include guidance on how to cross railway lines safely, the responsibilities of the access taker in such situations and the responsibility of railway managers to take account of the land reform legislation. Is that not a reasonable point to make?

The code provides advice and guidance for areas in which access rights apply; by definition, those areas do not include railways. However, there is general guidance on responsible access and an individual's responsibility for their well-being. The code includes health and safety advice that applies more generally and can be used in discussions between the access forum, Network Rail and whoever else is concerned in a particular locality to ensure that proper advice and guidance are given. That will be possible in any location where securing access across a railway line is an issue. Both Stewart Maxwell and I would want people to secure such access responsibly.

Does that cover the point that was raised with us?

Yes.

My next question relates to liability. The University of Aberdeen law school submitted evidence in which it welcomed the relatively full treatment of liability in the proposed code, but expressed concern that there was no specific statement on a legal principle that, unfortunately for me, has a Latin name. I refer to the principle of volenti non fit iniuria—that is as close as I will get to pronouncing it correctly. Under that principle,

"it is a defence to an action by a person who has suffered injury or damage to show that the person willingly accepted the risk of injury or damage knowing the risks involved but nonetheless accepting them."

The law school suggested that, without such a statement,

"the picture of liability given by the code could be regarded as incomplete."

Should a statement on the principle of volenti non fit iniuria be included in the code?

This comes under the heading of people taking responsibility for their actions, to which I referred in response to an earlier question. Paragraph 3.11 on page 16 of the code contains a marked amendment that states:

"There is a longstanding legal principle called ‘volenti non fit injuria'"—

that takes me back to my Latin O-level days—

"which means that a person taking access will generally be held to have accepted any obvious risks or risks which are inherent in the activities they are undertaking."

I now see the amendment and apologise for failing to notice it previously.

My other question relates to the Nature Conservation (Scotland) Act 2004. RSPB Scotland pointed out that the code refers specifically to the Wildlife and Countryside Act 1981 and wondered whether it would be updated to take account of the 2004 act.

I saw that that issue had been raised. The convener made the point that those who exercise access rights must comply with the law. In that context, the law includes the requirements of the 2004 act, which has not changed what constitutes responsible exercise of access rights in respect of wildlife. It is not the role of the code to interpret what is meant by reckless disturbance of wildlife, for example, which is an offence that we included in the new legislation. Ultimately, it will be for the courts to determine that. The 2004 act does not provide powers to landowners to prevent access, as has been argued, and those who exercise access rights must comply with the law, which includes the new provisions of the 2004 act.

I thank you for that clarification. The Ramblers Association and the Scottish Countryside Activities Council were concerned about the reckless disturbance point that you just made. They also suggested that careful guidance should be included to avoid any confusion or contradiction and to prevent land managers from having the ability to misuse those provisions. Will you comment on that?

I have no particular comment beyond what I have said. The Nature Conservation (Scotland) Act 2004 does not provide landowners with powers to deny access, although I know that some have argued that. Equally, those who exercise their right of responsible access must do so in such a way that they do not fall foul of the provision on the reckless disturbance of wildlife. I am sure that 99.9 per cent of people will not fall foul of that provision. However, when that provision is breached, it will be a matter for the courts rather than the code.

The Environment and Rural Development Committee also made that point about the operation of the 2004 act.

The next issue has been well rehearsed, but for the sake of completeness and to cover all the points that the Environment and Rural Development Committee made in its letter, I will ask about that committee's concern about paragraph 2.9 of the proposed code, which sets out guidance on access for those who undertake commercial activities. The Environment and Rural Development Committee is not entirely clear about how that guidance will apply to, for example, companies that offer group walking holidays. The committee understands that commercial activities that involve groups are not excluded from access rights, but clarification on that point would be helpful.

Page 9 of the proposed code says:

"a mountain guide who is taking a customer out hill-walking is carrying on a commercial activity but this falls within access rights because the activity involved – hill-walking – could be done by anyone else exercising access rights. The same would apply to a canoe instructor from a commercial outdoor pursuits centre with a party of canoeists. Other examples would be a commercial writer or photographer writing about or taking photographs of the natural or cultural heritage."

The point of contention is referred to, and proper guidance and advice are laid out in the code. However, what is being relied on is the Land Reform (Scotland) Act 2003, which, as members know, was written to secure such access rights.

I am aware that the arguments have been well rehearsed, by us in particular, and that several amendments were made during the passage of the bill to deal with concerns about commercial activity. However, I wanted to put the matter on the record because the Environment and Rural Development Committee raised it with us.

The RSPB has raised several issues, one of which is a point for clarification. When SNH commissions the RSPB to undertake surveys in relation to SNH's work, will the RSPB be covered adequately, as it is a non-commercial, voluntary organisation?

As discussed, and as you have said, interpretation of what falls within access rights is ultimately a matter for the courts. However, the non-governmental organisation activities to which you refer, such as survey work, would be likely to fall within one of the categories that are stipulated in the 2003 act, which I will repeat for the record. The categories are:

"recreational purposes … the purposes of carrying on a relevant educational activity; or … 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."

Whether charitable NGOs operate for profit may be arguable; many might claim to operate commercially. However, that would ultimately be a matter for the courts to determine, as members know.

Does that mean that it might be in doubt whether an NGO such as the RSPB could exercise its access right to survey land? Is it clear that such work involves a commercial transaction?

In my view, survey work by such an organisation would constitute

"carrying on a relevant educational activity".

Would the organisation be adequately covered?

Yes.

We want to ensure that that scenario would be covered—I can think of others, too.

We must understand that we will have the 2003 act, the outdoor access code and, ultimately, the judicial interpretation.

A number of submissions, particularly those that expressed land managers' concerns, raised an issue about what would happen if, in their view, a person was not exercising their access rights responsibly. During the passage of the Land Reform (Scotland) Bill, we discussed what the right course of action would be in such circumstances. In the past, land managers have called the police and I am keen that one of the outcomes of the 2003 act and the code would be the acknowledgement that such problems are better resolved locally and that the police should be called only when a criminal offence has been committed. Does the code address the issue, or would the local access forum deal with it?

The code contains a section entitled, "What to do if you encounter irresponsible behaviour". Paragraph 6.14, which reflects the point that you made, says:

"If a person's behaviour is criminal, you should contact the Police."

I imagine that in 99.9 per cent of cases of agreed access, rights will be exercised responsibly with the consent of managers and owners. If anyone acts in a criminal manner, they should be reported to the police.

The Environment and Rural Development Committee asked about dissemination of the code. I am sure that that has been addressed, but for the record what plans do you have to disseminate the information in the code?

A duty is imposed on SNH in that regard, as I said in response to Margaret Smith. The code will be publicised widely and we will circulate a summary of the code and engage in wider educational activity via SNH to ensure that recreational users are aware of the code's provisions and that land managers and others are aware of their responsibilities under the 2003 act and via the code. I hope that that activity will be as extensive as it can be to ensure that the issues are publicised widely.

Are there plans to produce a short summary of the code?

Yes. SNH will produce a summary of the code, which will be circulated widely.

I take this for granted but again, for the record, will the shorter version of the code reflect absolutely the intention of the code itself?

Yes.

May we have a copy of the summary when it is available?

It would be a mistake to go to all the trouble of producing a precisely worded code, only to produce a summary that departed from that. We will take great care to ensure that the summary reflects the code directly and the access forum will approve the summary before it is circulated.

It would be helpful if the committee could have sight of the summary when it is available. You also referred to guidance about acceptable signage in response to Margaret Smith's question; the committee would be grateful for the opportunity to see that, too.

I am happy to give an assurance in relation to both documents, which should be available circa late September.

Bill Butler asked about people with disabilities. When will you issue guidance to local authorities?

The consultation has just been completed, so shortly after the summer recess we will lay a negative instrument before Parliament.

We are grateful for the guidance that you gave us on our timetable. We will consider whether we have enough information to proceed with our report. We note the positive submissions that we received, some of which acknowledged that Scotland may have the best access legislation in Europe. That is a positive message, notwithstanding the fact that there are issues to be clarified and finalised.

The committee is grateful to you, minister, and your officials for the work that you have done. We look forward to receiving the guidance from you to complete the process. The Land Reform (Scotland) Act 2003 was one of the biggest—if not the biggest—pieces of legislation that the Parliament has dealt with, and we welcome the code.

Is there anything that you want to say before I put the question on the motion?

No. You pointed out the historic nature of the bill that we passed. We are discussing part 1 today, but parts 1, 2 and 3 taken together are probably the most significant legislation that the Parliament approved in its first five years. If the committee finds it possible to approve the code today, we will be able to bring it forward earlier than might otherwise have been the case. However, I wholly understand the difficulty that the committee might have in doing so.

The question is, that motion S2M-1455 be agreed to.

Motion agreed to.

That the Justice 1 Committee recommends that the Scottish Outdoor Access Code: Proposed Code (SE/2004/101) be approved.

It is up to the committee to make a decision on the timetable. Members heard what the minister said and we know what the deadlines are. I will take comments on whether members think that we can produce the report for tomorrow.

If the clerks can summarise the salient points in time for tomorrow, we should proceed, because that will avoid the delay until 2005 that could occur if, as the minister said, we wait until September. If that delay can be avoided, the historic access rights would be conferred. We should go for it.

Unless anyone is otherwise minded, I will take that suggestion as agreed. We planned for this eventuality, and our clerks have kindly agreed to start writing the report now, based on what members have said, the minister's answers, the written evidence and the report from the Environment and Rural Development Committee. I thank the clerks for agreeing to do that. As Bill Butler said—I am sure the committee agrees—it is important that we do this in the interests of passing the code for the summer.

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Victim Statements (Prescribed Offences) (Scotland) Amendment Order 2004<br />(SSI 2004/287)

Agenda item 2 is the Victim Statements (Prescribed Offences) (Scotland) Amendment Order 2004, which is a negative instrument. I refer members to the note that has been prepared by the clerk, which sets out the background, and invite them to comment. Once again, the efficient Subordinate Legislation Committee noted an error in a previous instrument, and recommended revoking the old instrument and replacing it with the one that is before us. There is nothing controversial in that. Are members happy to note the instrument?

Members indicated agreement.