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Chamber and committees

Education, Culture and Sport Committee, 08 Jan 2002

Meeting date: Tuesday, January 8, 2002


Contents


Land Reform (Scotland) Bill

The Deputy Convener:

The next item on the agenda is the Land Reform (Scotland) Bill. We have been asked to take oral evidence on the bill from Lee Cousins, who is head of strategy at sportscotland, Peter Higgins, who is from Outdoor Learning Scotland, and Fran Pothecary, who is from the Scottish Sports Association. I thank the witnesses for their patience during the earlier item. Members have received a Scottish Parliament information centre briefing paper and a written submission. We are not the lead committee, nor even the second committee on the bill, but it contains elements that cut across our remit on the sports development strategy in Scotland. That is the point for discussion this afternoon. After the witnesses' opening statements, we will proceed to questions.

Lee Cousins (sportscotland):

Thank you for inviting us. The bill will have a substantial impact on sport in Scotland and it involves all the people in Scotland, not only those in rural areas; the right of access is for those who live in urban Scotland as well. The bill has tremendous implications for education.

We gave the committee a short paper, which I do not propose to go through. I will highlight areas that are of concern to us. We want to stress how pleased we are that the bill has come into existence. There is a strong need for it in Scotland, which is well understood and well explained in the SPICe briefing paper.

Our statement contains 10 issues of concern. We believe that public debate on them is required before the bill is finalised. We understand that access must be regulated, but if regulation—by byelaws or some other power—is to work, the people to whom the regulation applies must accept it. The more people are involved in the derivation of the regulations, the more effective they will be.

The first four concerns in the submission are about matters on which there is not a lot of opportunity for public consultation or community involvement. Two sections of the bill give the minister power to modify the bill's content dramatically by public order, which does not guarantee public discussion. The power to change the bill is necessary. For example, between the bill and the draft bill, a change was made to ensure that the use of metal detectors would not fall within the right of access. That positive change came about by discussion, but it is possible to make major changes by order without a lot of public discussion, which would be against the spirit of public consultation and consensus with which the bill has developed.

Another point is the need for clarification on the different approaches to the bill and the Scottish outdoor access code. The code, which defines responsible behaviour, can be changed readily. Small changes that are required should be kept to the bill and not done by ministers. We are concerned about that.

The bill gives local authorities the power to exempt land and conduct from the right of access. It is not clear why that power must exist. The equivalent section on byelaws states that they can be made for

"The preservation of order; … the prevention of damage; … the prevention of nuisance or danger"

and

"the preservation and improvement of amenity".

It is difficult to think why local authorities need extra powers to exempt land or conduct. If there is no guidance on exemption, different situations might pertain in different parts of the country.

One of the points of the bill was to achieve clarity and consistency that people would be comfortable with. It would be difficult if you found that people had to do in the Dollar area something different from what they had to do in the Dumfries area, and I am not sure that a visitor to the countryside would automatically understand why that should be.

Before you can make byelaws that pertain to inland water, you have to consult recreational users; to make byelaws that pertain to land, you do not have to consult recreational users. That is a weakness.

The powers for Scottish Natural Heritage are unfettered. No one is suggesting that SNH should not have some ability to protect flora and fauna, but it seems that it can take any steps that it considers appropriate. It does not have to consult anyone and there is no right of appeal to ministers, as there normally would be.

Those are some of the concerns about the amount of public consultation on, and involvement in, the powers in the bill. Fran Pothecary will talk about the next area that we would like to highlight.

Fran Pothecary (Scottish Sports Association):

I am the access officer for the Scottish Canoe Association. Today, I am representing wider recreational interests as a member of the Scottish Sports Association.

My background is in youth and social work, working particularly with young people at risk. I moved into outdoor education and recreation and I have worked in a wide variety of environments such as colleges, community projects and outdoor centres. I say that to let members understand that I am a practitioner. That will become clear when I talk about some of the issues.

The main thing that I would like to bring to the committee's attention is the fact that the Land Reform (Scotland) Bill specifically excludes

"business or other activity which is carried on commercially or for profit"

from the right of access. That is of great concern to members of the recreation and education community. It has the potential to jeopardise the livelihoods of people who depend on access to the countryside. The particular section I quoted from was not part of the draft bill and there has been little opportunity for full public debate on it.

I will outline a few of the problems that we foresee because of this exclusion. First, there is the issue of definition. As we indicated in the paper that members received at lunch time, there are many ways in which people deploy their professional skills in the countryside—as teachers, as leaders, as guides or as instructors of outdoor activities. They work for educational establishments, for community projects or for private businesses and trusts. Many people work for themselves as well.

It is important to acknowledge that even local authority education centres have a requirement these days to wash their faces financially. In reality, much outdoor education is provided through the private and commercial sector. As a result, the boundaries between education and commerce are blurred. How can the term "commercially or for profit" be workably defined when so many facets of educational and outdoor activity provision are underscored by commercial transactions?

The second problem that we foresee is the potential detriment to tourism in Scotland. When he introduced the bill in November 2001, the First Minister stated that it provided for local businesses and tourism. It is hard to see how that can be when so many businesses and individual operators would fall without the right of access. They would be affected by the whims of those who may simply want to prevent their access to the countryside. We believe that the right of access should be available to all. How that access is exercised should be subject to the Scottish outdoor activity code.

We refer to the Scottish outdoor activity code a lot. It contains an extensive section on how the right of access to the countryside should be exercised—particularly by those whose use of land or water is intensive, regular or high impact. For example, it is envisaged that the greater the impact of an activity, the greater the responsibility would be on the provider or the organiser to consult the landowner. In practice, that principle is widely understood and implemented.

I have a letter that was forwarded to me. It is part of the evidence submitted to the Justice 2 Committee and it is from an affiliate member of Activity Scotland and of the Scottish Canoe Association. The author states:

"There is always a degree of negotiation involved with landowners in discussing planned use by companies such as our own. Any such negotiation can only be successful, just and fair for both parties if each is able to present its case from a position of inherent strength, either in law or precedent."

We believe that excluding those companies, their employees and other people who work in the outdoors would remove the level platform necessary for achieving that. If the provision in question goes through, there is a real chance that those who operate in commercial and educational concerns would be worse off under the new right than they are at present. That is one reason why there is such concern about the bill.

There are several practical difficulties. An example of a common activity that colleges or centres undertake is a multiday journey down the River Tay, from Loch Tay to the sea, which involves passing by the land and the banks of 110 riparian owners. Under the bill, it would be incumbent on the organiser or provider to contact each of those 110 people to establish permissions. That is one of the difficulties that would be thrown up.

It is likely that the conflict and challenge that would arise would be experienced at a grass-roots level—at the point of contact between the landowner and the user group. It would be a real mistake for the bill to introduce such potential for conflict when its avowed purpose is to improve dialogue and create better understanding and a more confident public attitude to access. Thank you for listening.

Peter Higgins (University of Edinburgh):

Like Fran Pothecary, I will introduce myself to give some background. My current responsibility is for outdoor and environmental education at the University of Edinburgh. Technically, I am here in that capacity rather than as a representative of Outdoor Learning Scotland—although I am a member of that body and of a number of other advisory bodies in Scotland, as well as European bodies in related fields.

I am an environmental scientist by training. I have spent a lot of time as a salmonid and freshwater ecologist, so I have considered access from a completely different perspective—the perspective of the fishery. After that, I trained as a teacher and an outdoor educator. I have spent much of my career in that field, working with children and adults as an instructor of canoeing, mountaineering and various other activities.

As well as training people who work in the countryside as outdoor educators, I am involved in research on, for example, the socioeconomics of outdoor recreation, outdoor education and Highland sporting estates, which is another dimension to the work with which we are dealing.

Although I give a broad welcome to the bill and endorse the points that were made earlier, I have some concerns. The bill seems to be overly complex, which I suspect will lead to difficulties in interpretation in the long run—particularly in terms of public understanding—and might result in legal arguments. It was always intended that the bill would have a simple structure, with the detail being contained in the Scottish outdoor access code. Much detail that should be retained in the code seems to have crept into the bill. The advantage of that is that the detail can be changed and modified with consultation, as Lee Cousins described earlier.

The outdoor access code has recently been redrafted by Scottish Natural Heritage. Originally, the code was worked on for a number of years and produced by the access forum. After the initial consultation, the code was redrafted without the involvement of any other bodies. Certainly on the recreation side of the discussion, no consultation was undertaken. Indeed, the bill states that there is no explicit requirement for SNH to conduct any consultation with recreational interests in that process, and that causes me some concern for the future.

The organisation that produced the guidance for the draft bill was the national access forum, which comprised a wide range of land management and recreational interests. The forum had many meetings and spent many years producing that guidance, but little note seems to have been taken of that guidance during the drafting of the bill. That is a concern.

Nonetheless, we have a bill that has been through one consultation phase and that requires local authorities to set up local access forums. Those forums will be established without any national guidance or overview; it is for each local authority to decide on their structure and format. That leads to concern that there will be significant variation across the country in the ways in which the forums work. There is a role for a national access forum to consult ministers, SNH and other agencies that have a responsibility for changing the code in the long term. I argue for the re-establishment of the national access forum. Educational representation was notable in its absence from the access forum in the first place, despite points being made about that. If such a body is re-established, I urge that educational representation be included.

I would like to say something about education; after all, this is the Education, Culture and Sport Committee. To my mind, all access issues are people issues. In the end, access is about people and the ways in which they relate to one other and to the countryside. The bill charges SNH with promoting compliance with the access code. That does not strike me as being very educational. From my understanding of educational processes, promoting compliance is not the most effective way of getting people to behave in the way that you want them to behave. That is the only mention in the bill of anything associated with education. The bill misunderstands the ways in which people learn and misses a significant educational opportunity. The irony of excluding commercial groups is that if they involve educational provision, they are the very bodies that would help people to understand their rights and responsibilities in the countryside.

We have to consider understanding and awareness as the key themes of education in the countryside. That is about getting people such as teachers, instructors and those from the voluntary sector in the right place—the countryside—with the people they are working with, to participate in the right activities in an educational context. In that way, people can understand how the countryside works, the ways in which recreation is taken in the countryside and the ways in which others make their living from the countryside.

The central theme of taking responsibility for one's actions as a visitor or a land manager in the countryside requires far more than public information campaigns. It is an aspect of citizenship. It requires learning and mentoring in that landscape, which is best effected through school visits with a teacher or during residential courses at outdoor education centres, where opportunities to encourage understanding of the natural and cultural heritage can be maximised. Such provision has been a long-standing feature of Scottish education, but it has been in decline in recent years for a number of reasons. The formal and informal education sectors can play a key role in increasing public understanding of the issues, but that can only be done through proper recognition of the importance of such education.

Access to the countryside is about education, culture and sport—it is about physical engagement in that landscape. We are due to make representations on the future progress of the bill, because that concerns this committee.

The Deputy Convener:

I will start the questioning, but I am sure that other members want to ask questions. Fran Pothecary mentioned the definition of commercial activity and the problems that may emerge as a result. That definition was not originally included in the bill. Where did the change come from?

Fran Pothecary:

The issue of groups and commercial activity was debated in the access forum, but was not included in the draft bill. The access forum felt that the issue of group access would be best dealt with in the Scottish outdoor access code. We assume that the Executive decided to define commercial activity in the bill because of lobbying during the consultation period. We imagine that that lobbying was done by land managers and land users who are concerned about what they believe to be exploitation of their land or water.

That was helpful.

Ian Jenkins:

I have a follow-up question. Is it your impression that the provision has been introduced into the bill not to catch education people and people who are doing existing activities, but to stop big commercialisation? Could the issue be dealt with by negotiation before it goes beyond the pale into the area of legal rights and suchlike? Your example was good, because no one sensible would expect folk to contact 105 or so landowners. However, the idea behind the bill is to prevent large-scale commercial activities that might trample on other people's businesses. Can the issue be negotiated or do you want that provision scrapped altogether?

Fran Pothecary:

I have drawn attention to the fact that there are many practical difficulties involved in trying to define commercial activity. The access forum discussed the issues extensively. The broad opinion—with which we agree—is that such issues would best be dealt with through the Scottish outdoor access code. I do not have a copy of the code on me, but different paragraphs refer to different types of groups, from the small-scale informal group right up to the mass event. We believe that such details should be removed from the bill.

Those definitions, however, are worth working at to get them right, because, as you recognise, there is a threat from over-commercialisation.

Fran Pothecary:

A lot of time could be spent further defining commercialism and business. The issue of small-scale, local problems would have to be taken into account. For example, the issue of the use of land by riding schools came up in the access forum. The fact that the bill's definition could affect such a large number of people needs to be carefully considered when deciding whether it is possible to come up with a workable definition that would not jeopardise people's livelihoods and the future economic basis of tourism and education in Scotland.

Mr Monteith:

I want to pick up on the same issue. Your example was that a group that was canoeing down, say, the River Tay might in future have to consult more than 100 riparian owners. What are the current arrangements for such an exploit or adventure trip?

Fran Pothecary:

Current access in Scotland is based on a long-standing tradition or custom of access to the outdoors, whether land or water. There is little law involved in arrangements of access to the countryside, other than that which involves securing access orders through local authorities. Such law is based on an understanding that access is used responsibly and that no damage or disturbance is caused to a land manager's activity. A raft of other legislation can be used to regulate and monitor people's behaviour when that behaviour strays into irresponsibility, from littering to vandalism. A landowner can also take out an interdict against someone who persistently causes problems or whom he or she wants not to return to the land.

Mr Monteith:

I presume that, if a group of people is currently exercising its right of access to the River Tay, it does not have to contact more than 100 riparian owners. What process do such groups have to go through? Do they have to get clearance? You talked about negotiation being common and the existence of informal arrangements.

Fran Pothecary:

There is no formal or legal requirement on anyone who is undertaking a multiday trip on the Tay or any other river or land to consult a landowner or land manager. The example that I gave comes from a company that uses various sections of river or coast regularly. As the company points out, it already undertakes extensive consultation. It is not in its interests to be denied access—it does not want access problems to arise when people are out on the trips. Therefore, although there is no formal or legal requirement on the company to seek such permission, it does so to establish good practice, good understanding and good countryside relationships.

Mr Monteith:

That is an interesting answer, as it backs up a great deal of what I have heard. Many such arrangements exist between people who access the land and those who own or manage it. There is concern on both sides, as those who want access to the land and those who manage it feel that the bill could cause difficulties for both groups.

As I said, informal, negotiated arrangements already exist. There may be an exchange of money, but I am not particularly interested in that. However, if the bill does not contain the provision on commercial activity that you want it to contain, people may have access as of right and their ability to negotiate will be taken away. Early in your paper, you comment on the need for increased resources for local authorities for the management of access, for example. I understand why landowners and land managers might be concerned that, if there is an increase in access, there may be an increase in cost to them and that, without the ability to have any leverage—to enter into negotiations—all that they will get will be that greater cost. Their fears and concerns are being ignored. I do not see an obvious solution to the problem, but I am trying to explore what is at the root of the provision. I suspect that its purpose is to put on a fundamental legal basis the informal relationship that currently exists. Including the provision in the bill may be a clumsy route to achieving that, but I suspect that that is its intention.

Fran Pothecary:

The access forum's intention was that the bill should codify the current arrangements. We believe that the provision would make the position worse for commercial educational operators. If someone is excluded from a right of access at the first hurdle, they have no way of moving forward from that position. If they have a right of access but the issue concerns the way in which that right is exercised and the impact that it has, they will be on a much stronger footing. That is why we are trying to move away from the definite exclusion, with all the definitional and practical problems that that would present, to a provision that considers not who has the right, but how that right is exercised.

Mr Monteith:

If your example were taken literally, someone could enter into negotiations with 115 owners but find that one owner did not agree to any use at all. Essentially, they might have to get out of the water, go down the road and get back in again. That is the absurd situation that could occur.

Fran Pothecary:

That is true. We would wish to avoid that. A small-scale, low-impact activity that was planned could be refused permission on the basis that it was commercial or a commercial educational transaction. That is one big risk of leaving the provision in the bill.

Irene McGugan wanted to speak—was it about a similar issue?

No.

Lee Cousins:

Mr Monteith mentioned the requirement for local authority resources. Much of that concerns where the major part of the access provisions will impact, which is on simple trips such as walking and cycling trips from in and around towns, and on countryside activities.

It is important that paths are considered a way of managing access. Paths that ease the way and make it easier for people to enjoy the countryside will be willingly used. Creating paths will require the resources that we are talking about. That reflects the point that Mr Monteith made: the creation of a path can be held up easily if there are 114 agreements and one non-agreement. The prospect of any new path is sunk at that point. People often desire to have circular walks.

Irene McGugan:

Lee Cousins spoke about the potential for changes—perhaps radical changes—to be made without the process of community involvement being safeguarded. How seriously concerned are sporting and recreational users that changes might be made without consultation to safeguard all interests? How would you like the bill to be amended to accommodate such concerns better?

Lee Cousins:

The seriousness comes from the potential for changes—if I can describe it that way—in as much as the minister can make quite radical changes. For instance, it would be in the minister's power to modify the right to apply only in daytime. As I understand it, he would do that with an order, which would go to a committee that had the right to veto it but could not have a great discussion about why the order was introduced or whether it was appropriate. No forum for such discussion seems to exist.

We are not saying that, as use of the bill evolves, no changes will be needed for conflict resolution and the easiness that we seek, but how will public debate be stimulated? I do not think that laying an order ensures debate, because as I understand it—I could be wrong about the procedure—a committee cannot debate an order; it can only accept or reject it.

It is not suggested that a proposed change might be presented to a national access forum, such as that to which Peter Higgins referred, for debate and consensus-building about whether it is required. There is no obvious way of consulting all the local access forums to find out whether a problem is real and countrywide, rather than a particular problem that someone has raised directly with the minister. The potential for misuse is quite high.

Recreational users should feel that they have been a part of the discussion through their representatives, as they have been through the access forum. The access forum involved a number of individuals, but we all went back to our constituencies and discussed whether we were doing the right thing. We built up an understanding of where we were trying to go, and therefore an understanding that when we got into the practical implementation of the access right it was most likely to work.

I have a couple of questions. I thank you for your presentation, which I found enormously helpful. I am sure that some of my colleagues agree that ministers are not in the habit of regularly abusing their powers.

Lee Cousins:

I spoke about potential abuse.

Jackie Baillie:

I listened extremely carefully. I am new to committee procedure, but I understand that although orders cannot be amended in a committee, they can certainly be discussed and debated—members of the public therefore have an opportunity to make their views known. I hope that there is a debate on the consensus around issues before orders are laid—that seems to be standard practice in the Executive. However, I understand your point.

There is a related issue. You seem to be keen on a national access forum. I think that I know why, but how would it play a different role in co-ordinating local access forums from that which SNH or another body that is already in existence might play?

Lee Cousins:

The strength of the access forum derives from the fact that it has three parts—Peter Higgins said that it should probably have had a fourth part. It is a combination of recreational users, land users and managers and the statutory agencies. As Peter Higgins said, it should probably have included outdoor education representatives too. The forum debates and tries to achieve consensus. That is what gives it its strength. Not just one body or view is asked to lead a process: a joint process evolves and educates itself as it goes along. That gives strength to the forum.

A national access forum's ability to link the local access forums is the other reason why there is a need for it—Peter Higgins implied that. We want to ensure that it is possible for a visitor to Scotland or a visitor who is resident in Scotland to go to the countryside with a certain amount of confidence. We tend to vary our pattern of trips across Scotland. Whether we go out in Angus, Fife or the Highlands, if there is no consistency there is a potential to create more confusion through the bill. There is a role for co-ordination and informing. A level playing field should be aimed for—if that is the right expression.

Jackie Baillie:

You spoke about consistency in respect of local authorities' powers and your submission lists local authorities' powers as an area of concern. You have two concerns—a duplication of powers and consistency. Surely there could be guidance. Would that satisfy your concern? You propose that the national access forum should provide guidance and consistency, but guidance might solve your concern.

Lee Cousins:

Local authority power is so undefined that an authority could decide to take an activity out in one place, but not in another. It could be decided that an activity can take place only during daylight hours in one place, but time for it could be extended elsewhere. It is not clear to me why that power is needed at all—the bill would work if it were removed. I accept that I might not have thought of situations in which a local authority might need such a power. For instance, I suppose that if the City of Edinburgh Council granted a licence for a circus on the Meadows, it might want to take away the right to walk freely through the area of the Meadows that was handled by the circus for 10 days. However, I do not understand why the bill cannot contain reasons why the local authority can do that.

Jackie Baillie:

Let me come back to you on that point. Throughout our consideration, we have struggled with what goes into the bill and what goes into guidance. That difficulty has come through in every point that you have made. As far as commercialisation is concerned, on the one hand you are arguing that something complex, particularly in its definition, should be included in guidance—the Scottish outdoor access code is available for that purpose—but on the other you are arguing that we should pile more detail into the bill.

It might be useful, given that many of these issues are complex and that there are many exemptions and exceptions, for much of this to be dealt with in guidance rather than defined in the bill. Some of your concerns, if they are met through the guidance, would then be taken care of. Do you agree with that?

Lee Cousins:

The short answer is yes.

I like short answers.

To long questions.

Sorry, Frank: it takes a while, but that is me finished.

Peter Higgins:

I would like to amplify that reply, if I may. The thing that we would like to be included in the bill would facilitate good use of the code, so we would be able to see how the code could be changed in the future. It is a complex issue and the populace is not used to engaging in it, unlike in other countries in Europe, where freedoms of access have been established and enshrined for years and where everybody knows where they can go and where they cannot go and what they can do and what they cannot do.

We should always bear in mind that the bill was originally intended to enshrine a customary understanding of what access is and how it could be enjoyed. The question seems to have become overly complex already. Because of the educational and public guidance aspects of the bill, there will be a period of many years when there will be discussion and debate during which parameters will undoubtedly change.

I envisage the access forums having a real job on their hands. For a start, getting 20-odd people into a room for a discussion, taking into account all the vested interests in given areas, will be logistically complex. If we multiply that across the country, it is clear that the forums will need some guidance. We need always to remember that the bill was initially intended to establish a customary right of access.

When a tourist arrives in this country from anywhere else in the world, I would like them to be able to go up to an information desk and pick up a leaflet, as they can in Norway and Sweden—I have an example with me—that simply tells them that they can go out and enjoy the countryside. The people of this nation should understand that they can enjoy the countryside. In that way, they will understand the natural and cultural heritage and we will thereby end up with a better educated populace with a broader understanding of a range of environmental, social and cultural issues. That would also enhance the health of the rural economy, which could well do with it, particularly following the foot-and-mouth disease outbreak.

I was going to try and end on a positive note, but I am aware that Brian Monteith wants to ask a question.

Mr Monteith:

Such impartiality, convener. [Laughter.] I wanted to pick up on your last point, Mr Higgins, about the rural community and helping the rural economy. I notice that your paper, under the paragraph headed "Bill welcomed", points out that the access forum said that

"a tripartite basis of legislation, education and an increase of resources to local authorities for the management of Access"

would be needed. I am not saying that any of you can speak for the access forum per se, although I understand that you may be individual members.

It strikes me that landowners or land managers will be concerned about the cost of managing access. They will be concerned, for example, about erosion and about providing better information in the form of improved signage to guide people to the paths that we have mentioned. Not all of that will be the task of local authorities. Was anything said about compensation or financial support for bodies that are not local authorities, to help them work in the tripartite manner described in your paper—increasing resources alongside education and legislation?

Lee Cousins:

I do not think that it was expected that landowners and managers would have to make a great investment in the management of access. It was always expected that the voluntary bodies would be involved. A number of existing access forums and trusts exist and they raise money from all sorts of funding sources to help with signposting and footpath repair.

I think that it was always clearly understood that local authorities would have a particular role in how the access forums made progress. That would ease the difficulties to do with consultation, with legislation and with sometimes going to court to create paths. That has been a difficult and costly process and it has been heavy on staff time, but pressure would be eased by the fact that a right of access would encourage landowners to manage that access and to create paths. Most of the resource implications are to do with paths, although some are to do with signposting. As I have said, most of the paths in the countryside are around towns.

The land-owning interests on the access forums were always very strong, but it was always known that investment by local authorities would be required to manage the process.

We seem to have exhausted our questions so I thank the witnesses for their time this afternoon.

Convener, will you be seeking additional suggestions of people from whom we might take evidence?

Martin Verity (Clerk):

There is no more time for oral evidence to this committee, but people can still submit written evidence.

I am thinking about the recreational and sporting aspects of the bill. Would it be possible to ask that the Justice 2 Committee take more oral evidence? I could sit in on any such meeting.

Martin Verity:

Yes, that could be done.

I can think of a number of sporting organisations that may want to give evidence.

If you want to make suggestions to Martin Verity, he will pass them to the clerk of the Justice 2 Committee.