Land Reform (Scotland) Act 2003
The final item of business is a members' business debate on motion S3M-187, in the name of Sarah Boyack, on land reform and the will of Parliament. The debate will be concluded without any question being put.
Motion debated,
That the Parliament is concerned about the decision by Perth Sheriff Court to grant a declarator to Ann Gloag, owner of the Kinfauns Castle estate, which has the effect of denying the statutory right to roam over parts of the estate that was previously allowed under the Land Reform (Scotland) Act 2003; notes that Perth and Kinross Council and the Ramblers Association opposed the declarator and gave evidence to the court that such a declarator would be contrary to the intention of the Act; believes that this decision undermines the clear will of the Parliament which legislated for the widest possible access to the countryside and that the court judgement ignores the significance of the Scottish Outdoor Access Code approved by MSPs to accompany and inform the operation of the Land Reform (Scotland) Act 2003, and considers that the judgement should be examined and appropriate action taken to give proper effect to the land reform legislation and, if necessary, guidance issued to the courts on the status of the access code.
I thank all my colleagues who signed the motion. The motion was written in the immediate aftermath of the Kinfauns judgment and it reflects the concern, among people who are committed to campaigning for improved access, that the implementation of the Land Reform (Scotland) Act 2003 could be undermined.
I wanted to lay down a marker, in these early days since the judgment, to enable those of us who remain strong supporters of the principles of the act to put our views on record in the Scottish Parliament. The Kinfauns judgment has inspired this debate, but I want to focus on the principles of the judgment rather than on the specifics—even though I have concerns and questions about them.
The Land Reform (Scotland) Act 2003 was one of the most important acts to be passed by our new Parliament. It was a symbolic act: it reflected the importance of access to our land in our culture and in our identity. For Labour members in particular, it was one of the founding principles of our party in Scotland.
The act delivered public access to the countryside and the right to roam; it delivered the right for communities to buy the land around them when it comes up for sale; and it delivered the right for crofters to buy their croft land at any time. For those who were on the case, the bill that led to the act was a marathon. It took up a huge amount of parliamentary debate: there were heated debates in committee on the details, and there was lengthy debate in the chamber. It was important that we got it right then and it is important that we defend its principles now.
The act has transformed communities. It has brought practical benefits to crofting communities, and the right to buy has transformed fragile communities and offered the chance to revitalise and develop sustainable communities. Crucially, the third part of the act has brought access to Scotland. It has already boosted tourism and enabled people to access our wonderful, beautiful countryside. Wild camping, rambling, walking, cycling, canoeing, horse-riding—a host of activities is now much easier. Access to our forests is getting people on to paths. Mountain biking is flourishing, with areas such as Glentress near Peebles and Laggan in the Cairngorms benefiting from the economic development that has come from the act.
However, there are tensions across Scotland that Scottish ministers have to be aware of. The status of the access code is critical. The code was developed because it was simply not possible to put all the details into the act, but, more than that, there was a desire to ensure that the code had wide buy-in and commitment from all who would be affected. It was not a normal statutory instrument.
There was lengthy consultation, with a wide range of views being debated over time and discussed in the Justice 1 Committee and the Environment and Rural Development Committee. We knew then that the code would be critical to the successful implementation of the act. It was clear to us that it was intended to be used as the main source of evidence in determining whether access rights were to apply to land or water in any declarator sought in a sheriff court under section 28 of the act. It was intended to guide not only responsible access, but the areas of land that the act covers. I ask the minister to address the code's status in his closing speech.
Will Sarah Boyack give way on that point?
I would really like to get on.
There is also the issue of consistency across local authorities; the relationship between access and planning legislation; and the question whether local authorities have allocated sufficient resources to implement their duties under the act, in particular the establishment of the core path network. I would like the minister to address those issues in his closing speech.
I ask the minister to consider the cost of access to justice under the act, because that is clearly now an issue arising from the Kinfauns case. A charity has tested the application of law in the public interest and has lost. In the process, it has had costs awarded against it. In a rather personalised briefing, the crisis managers Media House note that the Ramblers Association Scotland has not appealed the case. To be frank, I am not surprised. It is a charity, it took £20,000 for it just to get to court and it faces costs of up to £144,000 being claimed against it.
The cost of justice is now an issue. Does the minister agree that that is likely to put off charities, communities, individuals and, importantly, local authorities from testing the legislation if community access is being restricted? Surely the Parliament cannot accept that. Will the minister agree to consider the concept of protective costs orders? Their introduction would require an amendment to the Land Reform (Scotland) Act 2003, but it would protect those who act in the public interest to test access laws from being subject to excessive costs. A case would have to be tested first to determine whether it was in the public interest, but at least such orders would allow people to bring cases to the table and test the act. PCOs are in place in England and Wales. Surely they offer the minister one remedy to investigate.
We cannot allow the implementation of our access legislation to be determined solely by those who have access to the money to get to court. I stress to the minister that the Kinfauns case is not the only dispute of which I am aware. I visited a number of areas throughout Scotland during the summer with the Ramblers Association and I know from talking to colleagues that there are other disputes in other constituencies.
I can understand it if the minister, as a new minister, does not want to give instant commitments. However, I wrote to him earlier this summer and, as time goes on, we need to reflect on the impact of the Kinfauns judgment, how it will be viewed and how it will influence decisions throughout Scotland. It will certainly influence the implementation of the Land Reform (Scotland) Act 2003 and, therefore, I ask the minister to consider its implications carefully. In a cross-party spirit, I ask him to consider reporting back to us by the end of the year. What issues does he feel need to be considered? I accept that he does not want to interrupt his legislative programme, but more than one committee is ready and willing to examine his comments.
I thank colleagues for taking the time to be present at the debate. I sincerely hope that it will be followed by action from the Scottish ministers and that we will have proper post-legislative scrutiny from the Scottish Parliament. The Land Reform (Scotland) Act 2003 was an iconic and symbolic act, but it exists to make a difference and I would hate for the many organisations that worked with the Scottish Parliament and previous ministers to get the act right to feel that their efforts were being undermined.
I ought to declare a personal interest, as I spend virtually all my allocated holiday time with a pair of walking boots on, actually walking—indeed, this summer I did the great glen way—so access issues are always at the forefront of my mind, even when I am trying not to be concerned with work.
I congratulate Sarah Boyack on securing the debate. It is good that we are having the discussion. She may remember that, when the initial judgment was made in the Kinfauns case, I raised it with the First Minister because of my concerns, which were expressed quite openly at the time. In my view, the judgment gives cause for concern, and people are right to express it.
There is a tendency to forget that the contentious area at the heart of the case was only 4 acres of woodland, and that there was no argument about the other 8 acres of the total enclosed area of 12 acres. Personally, I am surprised that it can be argued that 8 acres is insufficient to provide privacy. Like other members, I suspect, I have to make do with considerably less than 8 acres to provide for my own household privacy. That area seems quite large. Even allowing for some differential need, as we probably must, the concept of privacy surely cannot be infinitely elastic.
It is clear that some planning and development control issues need to be addressed. Planning departments have been able to take on board the new culture that ought now to be in place following the passing of the Land Reform (Scotland) Act 2003. As a member whose constituency mailbag is chock-a-block with letters voicing objections to planning proposals and decisions, I am well aware that planners are something of a law unto themselves; other members might have a similar experience. Clearer guidance to planners might be required. I hope that the minister will reflect on that in his winding-up speech. However, the more general questions and concerns about planning probably need to be addressed separately from those concerning the legislation on land reform, as I suspect that they go further and deeper than the contents of the 2003 act.
There are problems with the potential cost implications of contesting declarator actions, judging by the final expenses bill in the Kinfauns case. I agree with Sarah Boyack. If clarity is a public good in such circumstances, a serious look needs to be taken at that aspect of the case for the sake of the public good. The Ramblers Association made a reasonable suggestion about protective costs orders, which the minister might wish to discuss with the Cabinet Secretary for Justice. I would not want that suggestion to be ruled out of order without any consideration. There is a huge issue of costs, and we do not want cases not to be brought for want of a proper decision.
I am conscious of the forward work programme to June 2008 that has been developed by the Rural Affairs and Environment Committee, of which I am convener. For a number of reasons, we have decided not to scrutinise the Land Reform (Scotland) Act 2003 during that immediate period. The 2003 act concerns more than just access. Significant issues are emerging regarding the community buyout sections of the act, both those concerning the community right to buy and those concerning the crofting community right to buy.
A major buyout is proceeding in my constituency; I refer to the Comrie Development Trust's purchase of the Ministry of Defence property at Cultybraggan, a former prisoner of war camp, which includes a handy bunker—I have always thought that I could come up with plenty of good uses for that. The deal has just been done. My close involvement with that buyout has highlighted to me the need to review some aspects of the relevant sections of the 2003 act.
As I have said many times in the chamber over the past eight years, I have long been a critic of the piecemeal approach to legislation. I have never much cared for miscellaneous provisions bills. We eventually end up at the consolidation bill stage, by which point, in my experience, no one really knows what on earth is going on, and people lose track of what a piece of legislation means.
So far, there has been one disappointing access case. We have no idea what the result of the Snowie case in Stirlingshire will be, nor when it will come. The Kinfauns case does not bind the sheriff in the Snowie case. This is where there is an issue about how elastic the privacy concept can be allowed to be. If the Snowie application, which seeks 40 acres of land for privacy, is successful, and if other cases follow, a review of the 2003 act's access provisions will clearly be necessary. I am strongly of the feeling that that should take the form of proper post-legislative scrutiny, which should encompass the whole act. I confidently expect that that will happen in the lifetime of the present Government; I am pretty sure that it will happen during the lifetime of the Rural Affairs and Environment Committee this session.
I congratulate Sarah Boyack on securing this debate—I know that the issues that she enunciates mean a great deal to her, and I congratulate her on the way in which she presented her case.
I am forced to recall the long and weary days of 2002 and 2003, when the Land Reform (Scotland) Bill was debated in committee and in the Parliament chamber. I still have the scars on my back from that particular exercise. Some hard words were said—there were some extreme statements from members on the other side of the debate. For my part, I merely described sections 1 and 2 of the bill as
"a land-grab of which Robert Mugabe would have been proud"—[Official Report, 23 January 2003; c 17377.]
and I compared the then Executive's policies to ones that would have been carried out in North Korea, Albania or Cuba.
Will Bill Aitken tell us whether that land grab has actually taken place?
It is early days yet, but I am sure that there are many who are working on it.
Sarah Boyack said one thing with which I have to take some issue. She said that the act "delivered public access" to the land. Let us be clear that part 3 of the act—over which there were some differences of opinion—was not totally unacceptable to anyone who considered it. The generally held view is that access to land should be maximised. We Conservatives would certainly not condone a situation in which a landowner who required a pair of binoculars to see people walking on his land would be able to prevent that from happening—of course we would not. The act did not deliver access to the land for the simple reason that in many respects access already existed. It did not have to be legislated for; it was there as a result of want and usage over many centuries.
The only controversial aspects—I recall explaining this in detail at the time—were the circumstances in which privacy could be affected and in which Scotland could lose out on the income that places such as Skibo castle generate through hosting celebrity weddings and the like. I know that that is a small issue, but a lot of people would be put off by a lack of privacy. There was a consensus that much of what was included in the act was already in existence and that there were no great issues to address.
Of course, I warned the Justice 2 Committee in session 1—Pauline McNeill will no doubt confirm this—that in the course of events, legal judgments would be required about what was reasonable in respect of the concept of privacy.
I admit that I have never visited Kinfauns castle estate, so I do not know its layout or its situation. However, a sheriff was asked to make a determination and he, like any judge, applied the law and doctrine of what was reasonable. In this case, Sheriff Fletcher at Perth clearly decided that what was reasonable was not what the Ramblers Association Scotland regarded as reasonable. That is a matter for him alone to determine, subject of course to appeal to the Court of Session. I know that Sarah Boyack is entirely well intentioned, but she is on rather dangerous ground by seeking to interfere with the freedom of movement of a particular sheriff.
I listened with interest and concern to what Sarah Boyack said about the Ramblers Association being hit with a fairly large bill for costs. The Ramblers Association presented its arguments in a reasoned and measured manner when it came before the Justice 2 Committee in session 1; it is an organisation for which I have considerable respect. However, I say to Sarah Boyack that the costs that it faces are exactly the same costs that any organisation, company or individual would face in taking legal action. There is always a risk that an action will be lost and, if so, a consequence could be an award of expenses.
Does the member recognise that if wealthy landowners know that all that they have to do is go to court to seek a declarator, which organisations will simply not be able to contest because the costs of contesting it will be so enormous, that will lead to an extremely unbalanced situation with regard to the way in which the legislation works?
I recognise the difficulties, but I see no way around them. The fact of the matter is that justice is always obtained at a price, particularly when one engages highly paid Queen's counsel in order to advance one's views in whatever court is involved.
There are real dangers here, on two grounds. The first arises from Sarah Boyack's suggestion that the question of costs should be dealt with by involving public funds in some way. Where would that end? The second arises from the view that is inherent in the motion, which is that the judgment of the sheriff was wrong and that Parliament should in some way overrule it. It is for the Court of Session to overrule the sheriff, if it considers it appropriate to do so, and there will be two bites of the cherry in that regard.
The intentions behind the motion are entirely honourable and worth while, but they are misguided.
The title of today's debate is "Save the Land Reform Act and Restore the Will of Parliament". I like that. The debate has raised an important and topical issue. In some ways, I would have preferred to have a proper debate on the subject, but I nevertheless welcome the members' business debate that Sarah Boyack has secured.
It has become my aim in life to get Bill Aitken to sign my copy of the Land Reform (Scotland) Act 2003. He has mellowed somewhat since the days when I enjoyed his company in the Justice 2 Committee, when he would argue strongly on the opposite side from me about the importance of that piece of legislation. He is right to say that Scotland has always enjoyed a progressive approach in relation to accessing the countryside. However, the point that is being made in this debate is that we must defend Parliament's decision to give the public a statutory right to roam and enjoy peacefully Scotland's land, scenery and environment. I believe that it is the right of every Scot to see the beauty of the Scottish countryside and that, therefore, it was right for us to enshrine that in law.
I convened the committee that dealt with stages 1 and 2 of the Land Reform (Scotland) Bill. It was a radical piece of legislation, which included the right to buy land and the crofting right to buy. It was right that it was dealt with by a committee whose remit concerned justice as I believe that it concerns issues of civil and property rights.
I enjoyed the time that I spent with Bill Aitken, Stewart Stevenson, Scott Barrie and others, arguing over the fine detail of the legislation. It is important to look at the legislation in the context of other acts of Parliament. There was a huge debate about what should be contained in the act and what should be contained in the guidance. It was agreed that it was not appropriate to put all the detail in the act, which is why the code is important. The minister needs to consider carefully the application of the code.
We all knew that the act would be challenged, and Bill Aitken is right to say that it includes provisions that give people the right to take matters to court. However, if I had thought for one minute that those provisions were not going to be accessible to people and that, as Roseanna Cunningham said, they might be prohibitively expensive to pursue, I would probably have thought further about including certain provisions.
I am sure that Bill Aitken will recall that the committee received many letters from landowners who were concerned about the possibility that the act would interfere with their ownership rights. Mohammed Al Fayed wrote to the committee threatening to leave Scotland if we dared to pass the act—I pass no comment on that. However, many other landowners wrote to the committee to support the ideas behind the act.
It is essential to note the Scots law maxim that what is not expressly forbidden is allowed, so we have a common-law right to roam, which preceded and sits alongside the statutory right.
Sarah Boyack is right to say that although the Kinfauns judgment is the context for the debate, the debate should be wider. I ask the minister to consider two issues. First, I ask him to examine closely the court's approach to the role that the access code plays. Having dealt with the Land Reform (Scotland) Bill at stages 1 and 2, I know that the code was clearly intended to be the guide to the act. If the minister is not satisfied that that was reflected in the judgment, I ask him to look into that further.
On the level of privacy that the court decided to allow, the judgment adds to sections 6 and 7(5) of the act something that is not there. Nothing in the act says that a judge should consider the personal circumstances of the occupier of a house. If that is to be part of the interpretation of article 8 of the European convention on human rights, on the right to privacy, which Roseanna Cunningham talked about, I am worried that my right to privacy and the right to privacy of Roseanna Cunningham or Mike Russell will be interpreted differently in court. I ask the minister to consider that.
We gave access officers the responsibility to make determinations—a determination was made in this case—using their skills and local knowledge. We must rely on them to make such judgments, which is why we have put resources into that.
Too many times in the past, when a dispute has arisen over land on which people can exercise their access rights, landowners have called the police, thinking that it was a criminal matter. I hope that we can nail down the fact that it is not a criminal issue but a civil matter until someone commits criminal behaviour. We want the access forums and not the police to be used to determine rights over land—we always intended that to be the case.
The debate has been good and I look forward to listening to other speakers. I finish by saying that the Ardverikie estate, which I have visited, has the largest inland beach in the country. If it were fenced off—as land was fenced off in the Kinfauns case—and the court agreed to that, the public would have no access to and would never see our largest inland beach. We must guard the legislation carefully. It is Scotland's land.
We in Scotland do not have a statutory right of access: we have a statutory right of responsible access. We do not have a right to roam. The Land Reform (Scotland) Act 2003 is one of the best acts of the Scottish Parliament. Unfortunately, the motion is somewhat misguided and misleading and, to an extent, it misrepresents the act. I have no great urge to say that, but it is true. Pauline McNeill's remark that we have
"a statutory right to roam"
is untrue.
I never said that.
You did.
I appreciate that Sarah Boyack admitted that the motion was written in haste soon after the Kinfauns court case.
No; I said that it was written in "the … aftermath" and not "in haste".
I apologise if the word "haste" was not used, but that is the impression that the member gave me.
Contrary to what the motion says, Parliament should not be unduly concerned about the sheriff court's decision in the Ann Gloag case. That is the first of several cases that will inevitably come before the courts. The ruling does not deny individuals their statutory right of responsible access to the countryside and to suggest otherwise is incorrect. The act makes it clear that the curtilage of an individual's home is exempt from the right. However, the act is not clear about the definition of that curtilage, for the good reason that to define it in law is impossible. I disagree with Pauline McNeill: reasonable privacy for one household is not reasonable privacy for another—it depends on the property's size and layout.
If Mike Rumbles is arguing in favour of a judgment that considered the person who resides in the place in question, does he not think that if Parliament had intended that to be a determining factor over curtilage, it would have said so in the act? The act does not say that.
I agree. The issue is a good issue for an appeal, which is where it should be included. As legislators, we were clear about the matter at the time. We passed the legislation knowing that if there was ever any dispute about the curtilage of a home, it would have to be addressed by case law. Raising the issue after the first court case and saying that the court findings are in breach of the legislation is therefore a little strange. That is simply not the case.
The motion calls for action to be taken
"to give proper effect to the land reform legislation".
That, too, is a rather strange request because that is exactly what has happened. The law on the curtilage of the home has been tested, and one party in the case and some members of the Scottish Parliament do not like the result.
The motion states:
"the court judgement ignores the significance of the Scottish Outdoor Access Code",
but it does no such thing. That code states that
"Although the Code provides guidance on access rights and responsibilities, it is not an authoritative statement of the law. Only the courts can provide this."
It goes on to say that
"The main places where access rights do not apply are:
• houses and gardens, and non-residential buildings and associated land".
Those are the first places that are mentioned. I am not criticising Perth and Kinross Council or the Ramblers Association—I like a lot of what that association does—but it was right and proper for the case to have been heard.
The motion is unnecessary, misguided and an overreaction to a legitimate test of the act. I ask the minister to recognise that in his response to the debate.
I refer members to my register of interests. I am a member of the Scottish Crofting Foundation.
I congratulate Sarah Boyack on securing the debate. Unlike Mike Rumbles, I think that it is essential that Parliament deal with the way in which the Land Reform (Scotland) Act 2003 is working, and that the motion is an excellent means by which to do so.
Sarah Boyack talked about the symbolism of the act and how it has made it possible for people to access land. We must continually refine words into certainties. Like devolution, the legislation in question is not an event; it is a process. That process will be tested in the courts, but it will also have to be reviewed in Parliament.
Coming, as I do, from outside Perthshire, it strikes me that there are interesting aspects of the access code. All managers should manage land and water responsibly for access, so a section of the access code describes how they should do so. However, I wonder whether, as we develop the legislation, we should test how many landowners have made it possible for people to access parts of their land in an acceptable fashion from the point of view of the general public and from that of protecting people's right to privacy. If we are to extend the debate, I would like to see how things work. I say that because the Scottish Crofting Foundation has been circulating a letter to its members that states:
"Under the Land Reform (Scotland) Act 2003, local and National Park authorities are obliged to produce, by February 2008, plans for a ‘system of paths sufficient for the purpose of giving the public reasonable access throughout their area'."
The letter goes on to say:
"It is very important that crofters and grazings committees that might be affected by the designation of Core Paths are involved at an early stage of the consultation procedure."
It seems to me that we are talking about the rights of landholders as well as rights of access, and that there must be a means to balance those rights. Open crofting land is not the same as a wood at Kinfauns, but access circumstances might affect a crofter as much as they affect Ann Gloag. I like to think that the law could take account of such things and that application of the law would be sensitive to small landholders in particular.
It is clear from the way in which the courts are working that proprietors who wish to make land available for development under other parts of the land reform legislation are now happy to send Queen's counsel to the Scottish Land Court and to outbid people who might object to that. So, the argument that there is one law for the rich and one law for the poor comes into play with regard to other aspects of land transfer at the moment. That matter must be seriously addressed. Parliament may have to consider whether it is equitable for someone to have to tackle a QC who is paid so much and who could land them with huge costs.
Part 3 of the 2003 act, which concerns the right to buy, has been shown to be considerably flawed from the point of view of communities outside as well as inside the crofting areas, as Roseanna Cunningham mentioned. The question of interposed leases was understood before the land reform laws were passed, but was not adequately dealt with during that period. As I said at the beginning, symbols are all very well, but it will take several slices of work by Parliament to turn symbols into certainties. If the Justice Committee has the space and the time to review the matter, that will be helpful. However, I am also looking for the minister to say how the Government will take on board what the previous Administration said about there being a need for post-legislative scrutiny of the land reform legislation and what the Government is going to do about it.
It is not a case of focusing just on the Gloag-style access grab, which is what I would summarise the motion as being about. The issue is not the need to save the land reform legislation; it is about developing it in a fashion that will satisfy more people than are satisfied at present. Because of the inequity of the problem of people trying to appeal issues such as this, whether they are organisations or individuals like ourselves—I have about a third of an acre of curtilage—we are looking to the Government for help in sorting out the problems. I hope that the minister can help us. In developing the land reform legislation, we may be able to learn from the Kinfauns case. In the meantime, I look forward to the minister's response.
As Sarah Boyack and Pauline McNeill said, the cause of land reform has long been advanced by the Labour Party. The Land Reform (Scotland) Act 2003 is an historic and symbolic piece of legislation. In the early years of Parliament, it was symbolic of the power of Parliament and of devolution. Free from the influence of the landed interests in the House of Lords, suddenly we could make advances that would not have been possible in past times. The act is also a symbol of the intention to give individuals and communities opportunities that they did not previously have, and to right some historical wrongs by rebalancing the interests of those who live on the land with the interests of those who have historically owned the land. It also rebalances the interests of those who want access to the land with the interests of those who have historically owned it and managed it largely for their own interests. The latter point is the issue that Sarah Boyack has brought to Parliament tonight.
It seems to me that the 2003 act reflected and took inspiration from earlier struggles for land reform—the land raids of times past. I vaguely remember Rob Gibson and me being involved in some enterprise to erect a plaque to commemorate one of those raids. Also, in more recent times, we have seen the struggles of the Assynt crofters and the people of the island of Eigg who, before the legislation was passed, were successful in their efforts to buy their own land. The act also reflects the acts and campaigns of the campaigners over many years who felt that they had been denied access to Scotland's land, and it gave individuals the right of access to the land that Pauline McNeill described a moment or two ago.
What a transformation we have seen. As Sarah Boyack said, access is beginning to open up in new and interesting ways, and we are seeing more and more communities using the act to buy their land. That is no longer exceptional behaviour; it is now the normal behaviour of communities across the Highlands and Islands, in particular, but also potentially throughout the rest of Scotland. That is a dramatic change from the situation that existed 10 years ago.
Does the member agree that some bodies might be hindered if the Big Lottery Fund makes it difficult for people to buy land that is Government property?
I will come to that specific point in my later remarks.
A transformation in the local economy is also evident in many localities where people have been successful in purchasing their land. Such communities now have more economic activity, more land available for housing and an increased population—we need only look at what has happened in Gigha. In some of those communities, people also now have more liberal access to the land than was ever the case previously. The aspirations of communities are being better met, opportunities are being created and life has been put back into many communities. So far, therefore, the land reform legislation has been a major success.
However, as Pauline McNeill hinted at and as Rob Gibson and Roseanna Cunningham said, good legislators should also involve themselves in post-legislative scrutiny to ascertain whether the will of Parliament has been met in all its respects. The Land Reform (Scotland) Act 2003 was a very complex act which, as Mike Rumbles and Bill Aitken pointed out, has been subject to interpretation by the courts. Sarah Boyack's motion raises an important issue about whether the will of Parliament is now being met. I completely accept the right of people to go to court to defend their interests as they see them but, post such court judgments, we have an obligation to ask ourselves whether the interpretation that case law has given to the act is actually what Parliament intended. In this particular case, I think that we are now at odds with that interpretation.
Perhaps, as Roseanna Cunningham suggested, more water has still to flow under the bridge before the legislation should be reconsidered, but I sincerely hope that the Rural Affairs and Environment Committee will engage in such post-legislative scrutiny during this parliamentary session in order to check that Parliament's intentions on access and on a range of other issues are being effected under the act. When we engage in that scrutiny—as I hope we will—I believe that we should also consider four other issues that I will briefly highlight.
Without wishing to add to the arguments that were well made by Sarah Boyack about the results of Kinfauns case, I strongly support her point—also made by Roseanna Cunningham and Rob Gibson—about the costs that are involved in such cases. I am sure that, with good will, we can make good progress on that front.
However, the first of the four points that I want to make concerns the timescales for land purchase under part 2 of the act. Those timescales are demanding: experience has shown that they are very tight indeed. They are also out of sync with the decision-making requirements on funders who support such land purchases, so the timescales need to be revisited.
Secondly, interposed leases—which Rob Gibson touched on—need to be considered. Although the recent Land Court decision clarified certain aspects of the law, we now have the problem that the value of an interposed lease that affects a significant activity—for example, a wind farm proposal—can be substantially greater than the value of the land itself. There is also an increased risk that the activity that is governed by such a lease will never happen. We need to look at the implications of that situation.
Thirdly, there is a definitional issue, which might seem slightly pedantic, about the difference between a crofting community body and a community body. Currently, a community cannot set up a single company under both part 2 and part 3 of the act. Communities have suggested that we need a different definition so that people can use both part 2 and part 3 of the act to register an interest under the right-to-buy provisions of part 2.
The points that I have made are illustrative of a wide range of other points that I will, given the time constraints tonight, need to make on a future occasion, but important questions also need to be asked about access, funding and the public sector accounting convention, which Rob Gibson mentioned in his intervention. That means that, in effect, public land is more problematic to secure than private land. We need to look at the implications of that.
Finally, Labour Administrations have since 1999 ensured an adequate supply of cash—perhaps I should describe it as a growing supply of cash, given that supply is never adequate—to allow communities to buy land. However, that funding guarantee will come to an end within 18 months. In terms of the planning cycles, that is a very short timescale for buying land. I hope that the minister will move quickly by giving an absolute guarantee tonight that he will ensure that funding beyond 2009 either continues in its present form or is made available as an outcome of the spending review.
Before calling Robin Harper, I ask a member to move that the time for debate be extended by up to 20 minutes to allow us to complete the debate.
Motion moved,
That, under Rule 8.14.3, the debate be extended until 6.10 pm.—[Pauline McNeill.]
Motion agreed to.
I apologise to the minister for the fact that I will have to leave the chamber well before 6 o'clock, because I am hosting a group of people who are in the Parliament to talk about environmental mediation.
Much work has been done on environmental mediation over the past eight years. It could do a great deal to prevent cases such as the Kinfauns case from getting to court and to address the issues that Rob Gibson raised. It could bring landowners into the fold with the Ramblers Association and others, so that they start to talk about arranging access to their properties rather than wait for people to want to walk through them and then put up fences, lock gates and provoke the kind of legal action that the Ramblers Association had to take at Kinfauns. Will the minister consider setting up a Government environmental mediation service? It would be a lot cheaper in the long run than what happens at the moment.
The alarm bells are ringing in my mind, as my attention has been drawn not only to the Kinfauns judgment but to a judgment in Dunblane, where a community group called the Holme hills group wanted to buy some land that Stakis Ltd also wanted. Although to many people the case for a community buyout seemed to be absolutely sound, Stakis won. Ann Gloag and Stakis have a lot of money. Will there be one law for the rich and another for the poor under the 2003 act as it operates at present?
It has also been drawn to my attention that in the Borders, south-west of the Moorfoot hills, many paths have been closed off by a local landowner. People have objected for the past two years, but so far nothing has happened because there is no heavy local interest in keeping the paths open—but walkers have a general interest in the area. The paths are marked on Ordnance Survey maps and are included in advice issued by the Ramblers Association. People who want to access the Scottish countryside have a general interest in using them. The same thing may be happening in other parts of Scotland. If there is no big local community interest in a path, landowners may get away with closing it off because it is not often used.
I congratulate Sarah Boyack on bringing her important motion to the chamber. I have absolute sympathy with Bill Aitken's concern about politicians interfering in the law, but when a sheriff makes an outrageous judgment it is our public duty to complain and to say what we think of it. The Kinfauns judgment is not the first judgment by the sheriff concerned that has been challenged. I have before me a copy of a press release dated 23 July 2003, in which John Swinney criticised Sheriff Fletcher for an extraordinary judgment in which he found a defendant not guilty simply because the trial had gone on for a long time.
Does the member agree that the proper place for such matters is the court of appeal? It is not for politicians, who have not been in court, to decide what is right and wrong—that is a matter for the appeals process.
Politicians are not deciding what is wrong or what is right—they are expressing their concerns. It is right that we should do so. As Sarah Boyack pointed out, one reason for our venting our concerns about such cases is that the Ramblers Association is not in a financial position to challenge the Kinfauns judgment.
I have covered everything that I wanted to cover, except for two big points that I will draw to the minister's attention in future: first, we still do not have a cadastral register of land in Scotland, so we do not know who owns every scrap of land in the country; secondly, local authorities throughout Scotland do not have proper registers of the common-good land—to which the public have absolute right of use—that is at present in their care.
I congratulate Sarah Boyack on securing this debate and allowing us to discuss important areas of the law and how the courts interpret it. Like Roseanna Cunningham—although I suspect that this may be the only point of agreement between us this evening—I preface my remarks by declaring an interest: I am a walker and a climber. Indeed, I am pleased to say that, this summer, I officially became a half-Munroist, when I passed the 142 mark. I still have a long way to go though. I have also long had an interest in access and the balance of rights between those who own the land and those who wish to exercise access over it.
I should preface my remarks by saying that I have no brief for Ann Gloag, and nor, for that matter, for Perth and Kinross Council. Further, I have no brief for the Ramblers Association, although I pay tribute to the work of the association, with which I have been pleased to work on a number of issues, among them opposing unwanted and unsuitable wind farms in many parts of Mid Scotland and Fife. We are currently working on opposition to aspects of the Beauly to Denny power line, on which the local public inquiry is on-going.
Sarah Boyack's motion is defective in four areas. First, as Mike Rumbles said, there is no such thing as a statutory right to roam. When the Parliament passed the Land Reform (Scotland) Act 2003, it was clear that what we were creating was a statutory right of responsible access. Secondly, the motion says that the declarator applies to parts of the estate where access was previously allowed under the act, as if to suggest that Ann Gloag sought to change the status quo, but that was not what the case before Perth sheriff court was about; the declarator is about Ann Gloag seeking to determine whether access rights existed over that particular piece of land and whether she was entitled to protection of reasonable privacy that exists under the act. It is not true to say that the judgment took away a right that already existed.
The third area in which the motion is defective is that it says that the decision of the court
"undermines the clear will of the Parliament".
That may be a statement of opinion, but it is veering towards being insulting to the sheriff in this case, whose job is to take the law as passed by Parliament and apply it to a set of facts and a set of circumstances and come to a conclusion. I do not conclude that he undermined the clear will of Parliament. If the will of Parliament had been clear, he would not have been able to reach the decision that he did in this case.
Fourthly—Mike Rumbles also made this point—the motion is defective because it states that the court's judgment
"ignores the significance of the Scottish Outdoor Access Code approved by MSPs".
The act makes it clear that the code is for guidance on whether access has been exercised responsibly, not whether access rights apply. The application of access rights is set out in the act, not in the access code.
In a parliamentary democracy such as ours, we in the legislature pass laws, and we rely on the courts to interpret them. To do that, we must have faith in the ability of the courts. Other members have already made the point that we have a mechanism for appeals to higher courts, to try to reach judgment on difficult circumstances.
I accept that it is quite proper for a Parliament to look again at legislation if it feels that a pattern of court judgments is developing that goes against the intention of legislators at the time the act was passed, but I find it ludicrous that we should propose a review of the situation after one judgment—which, for that matter, was made in a sheriff court, sets no precedent and against which no appeal has been made. It is far too early for such a move.
I thank the member for letting me make a brief intervention. I should point out that I avoided going into the details of the case because I did not think it appropriate to do so in Parliament. Does the member accept that the implication of the judgment is not only that people will not be able to appeal these cases but that they will not even be able to get them to court because of financial concerns? We might not see a flurry of cases because people will not be able to afford to take them to court. Surely we can all agree that we need to find a solution to that worrying situation.
The member has, like other members, raised a legitimate concern about the cost of access to justice, but we should not restrict that issue to cases under the Land Reform (Scotland) Act 2003; it goes right across the board.
I reiterate that it is—to put it mildly—premature to raise concerns about the act on the basis of a case that has been determined in the sheriff court, that sets no legal precedent and against which there has been no appeal. Although I understand the member's motivations for lodging this motion, it is seriously defective. We should not rush to take action on the basis of a court judgment that we do not like.
I, too, congratulate Sarah Boyack on securing this debate. I fully acknowledge the issue's importance and the fact that it should be addressed, and I hope that what I have to say goes some way towards reassuring her.
This Government enthusiastically supports the statutory right of responsible access to most land and inland water for recreation, passage and other purposes throughout Scotland, which is the exact provision set out in part 1 of the Land Reform (Scotland) Act 2003. The Parliament's clear will during the passage of the Land Reform (Scotland) Bill—and as confirmed after its enactment in 2003—was that the widest possible access should be available to all in Scotland. Indeed, the bill was passed by 101 votes to 19—and I note without comment that of those 19 only nine remain members of this Parliament. That might say something about what has transpired in the intervening period.
As far as we are concerned, the 2003 act is important and we want to support it in every possible way. I should say in passing that not only members of the Labour Party regarded the legislation as important and as a founding principle in the approach to land. Many people in my own party and in others—although probably not the Tory party—were passionate about passing it. We should pay tribute to all those people and make it clear that we will work hard on this important legislation.
However, we have to judge the situation on the evidence before us and ask ourselves some evidence-based questions. Peter Peacock made a good point in highlighting issues that should be considered in any post-legislative scrutiny. Two questions, in particular, should be examined. First, does the legislation have any loopholes that need to be closed urgently? Secondly—and this is the real question that must be addressed—does the legislation require to be improved in any way? We should not simply base our approach on a knee-jerk reaction—no matter how justified it might be—to a single case that, as members have said, does not set a precedent.
We also have to consider such matters responsibly. The word "responsible" has been used several times this evening and, 10 years after the devolution referendum, we should reflect that the Parliament has not only rights but responsibilities, one of which concerns the leadership of debates. As a result, I regret a little the fact that the phrase
"Save the Land Reform Act",
which is in the title of the motion, and which Pauline McNeill welcomed, is not exactly accurate. Language about reviewing, developing or protecting the Land Reform (Scotland) Act 2003 should have been used, because the act does not need to be saved; it is operating well.
Before I say any more about that, let me clear up some of the issues that have been raised during the debate. My friend Roseanna Cunningham mentioned planning. She will be pleased to know that the new Government is already fully addressing that issue. As regards the future provision of planning guidance to local authorities, a draft of Scottish planning policy 11, which is entitled "Open Space and Physical Activity", will shortly be sent to ministers. I can tell members that it states that access rights will be a material consideration in determining applications for planning permission and that local authorities will have a duty to uphold access rights over most land and inland water. The planning issue is being addressed.
Expenses are another issue that has been raised repeatedly. However, it is important to acknowledge that that issue does not apply exclusively to disputes under the Land Reform (Scotland) Act 2003. It would be perfectly in order for any member to suggest that protective costs orders, which protect organisations that act in the wider public interest in England, should apply in Scotland and that the relevant legislation should be developed in Scotland. We could have a good debate about that. However, it is not the purpose of the 2003 act to address that issue, so I cannot deal with it. Another reason why I cannot deal with it is that, at present, there has been no final determination of the costs. It is important to state that clearly.
I am slightly disappointed by how timid Michael Russell is being. He is not normally timid on such matters. I accept his point that a final determination remains to be made, but if it comes out as matters stand at present, does he accept that in land reform and land ownership cases—in which, almost by definition, the people who own large tracts of land tend to be extremely wealthy and those who have, for example, community interests in buying or accessing land or individual interests in accessing land do not have the same degree of wealth—the Government can, in some circumstances, play a role in supporting people to exercise their right to challenge in the courts?
Of course. I have always strongly supported the principle that there should be equity, but we should remember that there is a legal obligation on local authorities to fight such cases. It is not simply a question of David versus Goliath; other bodies are involved and we should remember how they are involved. Although I am sure that he does not mean to, Mr Peacock slightly misrepresents the situation. Given that he is a man who is well known for his caution, it is a privilege indeed to be described by him as timid.
I turn to the access code. Much has been made of what the judgment said about the code. In his determination, the sheriff concluded that the code was relevant in court proceedings for the provision of guidance. That is exactly what the code was meant to do. It is not possible to complain about a piece of legislation on the ground that it does what it was intended to do. The code exists to provide guidance, but the code is not the legislation. If that position were to be changed, it would be up to the Parliament to change it.
The previous Administration made a commitment to review the Land Reform (Scotland) Act 2003 in its totality. I am grateful to some members for raising other issues in the act, which is not just about access. Mr Peacock, Roseanna Cunningham and Rob Gibson all raised issues that need to be reviewed. As a Government, we will continue with that commitment. I hope to be able to bring some ideas about review to the Parliament shortly.
I would also be happy to talk to committees such as the Rural Affairs and Environment Committee about review. However, we will talk about post-legislative scrutiny. We must not lead anyone in Scotland to believe that a piece of legislation that is working well—all the analysis of the act shows that that is the case—needs to be saved. More people are taking the opportunity to visit the countryside and more people are, like Mr Fraser, halfway to bagging all their Munros. In those circumstances, let us celebrate what the act has achieved and let us improve it if we can. Knee-jerk reaction is always wrong, and it is wrong in the present circumstances.
Meeting closed at 18:10.