Land Reform Bill (Draft)

Access

Briefing Paper prepared by the Ramblers Association (Scotland)
May 2000

The following briefing on the draft access legislation has been prepared by the Ramblers Association and is published here for information.

Content

Background

The debate over outdoor access has continued for well over 100 years - certainly from the time that James Bryce MP introduced the Access to Mountains (Scotland) Bill in 1894.

Bryce was concerned by the exclusion on sporting estates and at that time he said:

"Eight years ago everybody could go freely wherever he desired over mountains and moors. Scotland is the only country in the world where an attempt is made to interfere with the right of people to walk freely over uncultivated ground."

There has been some confusion over the law in Scotland. Prior to the 1960's there appears to have been a clear view that there is no offence of trespass. So in 1942 Tom Johnston, Secretary of State for Scotland, could say:

"In Scotland the law is abundantly simple. There is no such offence as "trespass" which is a term borrowed from English jurisprudence. Any member of the public is accordingly at liberty to walk over any land in Scotland provided he does no damage to crops or fences and does not commit a breach of the various Poaching Acts. This applies to the whole country with the exception of private gardens or grounds which form the curtilages of a dwelling house or other private residence."

And in 1961 The Scottish Landowners' Federation said:

"There is no law of trespass in Scotland...If people choose to picnic on a lawn in front of a house, the owner can do no more than point out the private nature of his property and of his entitlement to its exclusive use and enjoyment. He cannot prosecute for trespass. Force cannot be used to remove his uninvited guests, although if they persist in coming and picnicking regularly, an interdict against them could be obtained".

But in the mid-1960's the Government changed its view on this matter - but apparently with no legal basis for doing so. Official bodies such as the Countryside Commission for Scotland chose to misinterpret the legal position as a result of powerful landowner pressure.

It must be assumed that Tom Johnston's view still stands as relevant but there is a real need for the new legislation to clarify and codify the public's existing rights of access. It is to be hoped that the new legislation on access will secure, for all time, the sound interpretation given by Tom Johnston of the law in Scotland.

Why legislate?

Legislation is needed - to clarify access law, to deal with maverick landowners and to enable the development of path networks - but it has to be the right legislation. The system must build on the freedoms the public has at present rather than one that straight jackets responsible enjoyment of our land.

Freedom of responsible access is the fundamental basis of recreation in our countryside. It enables us to enjoy our land to the full - and not just on designated paths. It is essential to allow our children to learn freely about the world around them. What botanist or birdwatcher would have developed their interest and skills if they had been restricted to footpaths? It enables us to enjoy watching wildlife; explore the hills, hedgerows and woods or to have a family picnic under a tree off the beaten track.

Some landowners may have good reason to restrict access on their land. Perhaps they worry that walkers might stumble across evidence of badgers, buzzards and other wildlife illegally poisoned or trapped on their estates. Such incidents are rarely discovered close to busy paths - rather walkers exercising their right to roam come across them.

The proposed legislation should enshrine in law the long-standing Scottish tradition of tolerance and respect towards the need for people to move freely through the outdoors for a wide range of recreational activities. The right of responsible access to all land and water for informal recreation and passage will secure in statute the existing lawful basis on which most access is taken in Scotland but which has been subject to increased challenge over the last 30 years by landowners and public bodies.

Angus MacKay, The Deputy Minister for Justice: "The legislation is about a responsible right of access. It is about codifying what happens currently. It makes it clear to landowners and those who want to walk and have sensible recreation in the countryside what they are fairly allowed to do and what is expected of them." Land Reform debate, Scottish Parliament, 24 November 1999.

Political commitment - Party Manifestos and Partnership for Scotland

* New life for Scotland's rural communities, New Labour, February 1997

"Labour's fair deal for Scotland's rural environment includes: advocating greater freedom for people to explore our countryside."

* Speech for Secretary of State on natural heritage policy: Tuesday 2 February 1999

"The Government proposes new legislation at the earliest opportunity to give a statutory right of access to land and water, exercised responsibly, for informal recreation and passage. "

* Building Scotland's future, Scottish New Labour manifesto for the Scottish Parliament, 1999

"We will also introduce a guaranteed right of access, subject to a code of responsible behaviour for landowners and users, for all to enjoy Scotland's scenic heritage and countryside."

* Raising the Standard - Scottish Liberal Democrats' Scottish Parliament Manifesto, 1999

"We will legislate to implement the proposals of the Access Forum."

* Partnership for Scotland, May 1999

"We will legislate to give a guaranteed right of access, subject to a code of responsible behaviour."

* Land Reform: Proposals for Legislation, Scottish Executive, July 1999

"The proposed legislation will create a right of responsible access to all land in Scotland, including enclosed agricultural land as well as open and hill ground, for informal recreation and passage. The right will also extend to inland water."

The Process

The Access Forum, comprised of representatives from all sides of the access debate including landowners, walkers, and public agencies was set up by Scottish Natural Heritage in 1994 to consider and resolve issues at a national level. In 1997 SNH was asked by the Scottish Office to review legal arrangements for access and to make recommendations for the Scottish Parliament. The Forum was asked by SNH to help frame recommendations on the need for access legislation.

The Access Forum's recommendations on access legislation included a proposed Scottish Outdoor Access Code, setting out guidance on the definition of responsible behaviour along with recommended new procedures for securing access along paths and tracks.

"There should be a right of access to land and water for informal recreation and passage, subject to responsible exercise of that right, to protection of the privacy of individuals, to safeguards for the operational needs of land managers, and subject to any necessary restraints for conservation needs." Access Forum 1998.

The Draft Bill

The principle of establishing a right of responsible access to land and inland water for recreation and passage, subject to appropriate safeguards for health and safety, privacy, land management and conservation, is to be welcomed.

Whilst the draft Bill has many welcome features various elements are of very serious concern. In its current form the Bill will significantly undermine the existing basis on which public take access to land and water and could easily reduce opportunities for enjoying the outdoors.

There has been significant movement away from the concept that the right of responsible access should apply to almost all land (except that excluded on grounds of privacy and safety), supported by a balanced package of responsibilities of users, owners and public bodies and with the detail of implementation described in the Code, not in the Bill. For example, certain area exclusions (e.g. crops and recreational land) have crept into the Bill, which will result in a complex set of definitions, registers and possibly maps being required to implement it. Together with the introduction of both a new criminal offence and a power for landowners to suspend access rights, this goes against one of the stated intentions of the legislation (p14) to 'avoid such uncertainty and to provide people with confidence to go out and enjoy the countryside'. Whereas the advice of SNH and the Access Forum proposed a balanced package of rights and responsibilities for users, owners and public bodies there appears to have been a shift towards seeing 'access takers' as a problem (against the stated intention of the legislation) and creating few new balancing powers to support access (e.g. no path blocking crime is proposed).

The Legislation should be Re-framed

It is recommended that the legislation should be re-framed so that:-

It is clear that the Access Forum's advice on this legislation, which was supported by the government's own advisers (Scottish Natural Heritage and Sportscotland), has not been followed in several significant respects. In particular, many issues, which the Access Forum recommended should be dealt with by the Scottish Outdoor Access Code, have been included in the draft Bill itself. This leads to much more draconian measures, a lack of flexibility and areas of land excluded from the right.

The Access Forum proposals were a carefully balanced package with all the elements mutually supporting each other. The Bill, as drafted, shifts the balance in favour of landowners.

Relationship with Existing Rights

The proposals will result in two tiers of access rights:

The implication of this is that the public may continue to exercise their existing rights in areas excluded from the new right or when taking part in activities excluded from that right. The significance of this is apparent from the recent proposals on changes to the law relating to the foreshore.

Relationship between the legislation and the Scottish Outdoor Access Code

The intention of the Access Forum was that any detail relating to responsible access should be dealt with under the Code rather than on the face of the Bill. The Code would be subject to review and could be readily updated or amended. As drafted there is much in the Bill, which should be dealt with by the Code.

There may be confusion in the public mind as to the relationship between the Bill and the Code - particularly as there are a number of contradictions in their content. It must be made clear that the legislation should be read in conjunction with the Code and that the Code gives guidance on the interpretation of responsible behaviour for users, land managers and public bodies.

Recommendation:

The inconsistencies between the Bill and Code must be resolved before consideration by Parliament. The legal status of the Code must be clarified and it should come into operation on the same day as the legislation.

Lessons to be learned from the Foot and Mouth Disease epidemic

The present Foot and Mouth crisis has resulted in a remarkable level of co-operation in Scotland between the farming and outdoor recreational communities, culminating in the launch of the 'Comeback Code'. The public has demonstrated that they are well able to follow advisory signs and advice without the need for the draconian measures proposed in the draft Bill.

One of the lessons of Foot and Mouth Disease is that Highland Council was able to effectively close down all their countryside by doing no more than requesting the public to stay out of the countryside. The council simply asked people to stay out of the countryside and deliberately did not threaten them with reference to statutory controls and criminal offences and fines. Compliance by the public with this request seems to be no less than the public's compliance with the more threatening approach used by other Councils. T

he behaviour of the public throughout the Foot and Mouth crisis has demonstrated that a voluntary approach to restraining access does work. It has also demonstrated that there is no justification for introducing draconian new powers to restrict access.

What is good about the Bill?

The principle behind the Bill is to be welcomed and there are a number of good aspects to the proposed legislation, which must be retained.

The new Right

The decision to legislate to establish a principle of responsible access for all types of user - including cyclists and horse riders - should be welcomed as fundamentally important. In recent years an increasing number of land managers have challenged the tradition of tolerance of access which has prevailed historically. This has led to confusion over whether a right of access applies in Scotland. Local authorities have also found it very difficult under the present system to develop paths and networks to facilitate access. For these and other reasons legislation to attempt to establish the proper balance between public and private interest in rights of access to Scotland's land and water is to be welcomed. It is welcome that the right applies not only to recreational access but also to passage over land and water.

The Right Applies to Land and Water

There has been concern that inland water would not be included in the right - it is therefore important that it has been included in the draft Bill. It is also welcome that the right applies both above and below ground.

The Access Forum recommendations form the basis for key elements of the Bill.

This was a carefully crafted, balanced package, and the result of years of negotiation by the interested parties. However the addition of extra parts (as outlined below) pushes the recommendations out of balance and, if not removed, will lead many to consider whether we are better off under the existing arrangements.

The Right can be exercised by Groups

At one stage there were fears that the right would not apply to groups of people. The arguments in favour of it applying to groups appear to have been accepted. There is an acceptance in the introduction to the Bill that while the Bill makes provision for an individual right of access there is nothing to prevent collective exercise of the right providing this is done responsibly. Guidance on this is included in the Code. It is welcome that the legislation does not distinguish between different types of user.

The Right will apply at all times

It is to be welcomed that the right will apply at all times of day or night.

Recommendation:

The existing positive features of the Bill must be retained.

What is Wrong with the Bill

Most of the problems result from changes to the Access Forum recommendations or issues being moved from the code into the bill itself. These seem to have resulted from lobbying by land owning interests and drafting problems. At the public launch of the draft Bill the Environment Minister, Sam Galbraith, said, this is a "working document". Significant changes should be made to restore the balance of the proposals.

Land over which access rights are not exercisable (Section 4)

Recommendation:

Much of this section should be redrafted or dealt with in the Code.

Privacy

The provision for excluding land in addition to curtilage for reasons of privacy did not form part of the Access Forum recommendations and is so loosely worded that it is potentially open to abuse.

Recommendation:

Section 4(b)(ii) must be removed from the draft Bill.

Recreational land

The draft legislation states that access rights are not exercisable over sports grounds, playing fields, or over land developed for a particular recreational purpose while it is being so used. However, this blanket exclusion from the right would for example deny people daytime access to golf courses, which are often excellent places to walk, and where access can be combined with the main function of the piece of land under clear guidance. Furthermore, the term "land developed for a particular recreational purpose while it is being so used" could be interpreted very broadly and lead to a wide range of recreational interests wanting land which they use to also be excluded.

The Access Forum proposed that the Scottish Outdoor Access Code should be used to guide behaviour in such circumstances. The Code would advise on identifying times and places when and where you may not be expected to exercise your right, and responsible behaviour would take into account the main functions of a piece of land. For example, on golf courses, you would not be expected to interfere with anyone playing golf and special restraints on dogs may be requested.

Recommendation:

Section 4(e) must be removed from the draft Bill.

Rights of Way

4(f), in its current form, would exclude horse riders and cyclists from all pedestrian Rights of Way.

Recommendation:

Section 4(f) should be redrafted.

Land on which a charge has been made

This section is open to abuse. There should be no suggestion that payment for access is acceptable - as opposed to payment for a facility or service. As it is written it is open to a landowner to potentially argue that a charge has been for access to land and that this would continue.

Recommendation:

This must be redrafted to ensure that charges for access do not continue but that legitimate charges for a facility or service can be applied. A system of approval for charging might include a role for access forums or the local authority.

Cropped land

Land on which crops are growing would be excluded from the access right. Crops are defined as plants which are cultivated for agricultural or commercial purposes including young trees but excluding grassland, unsown headrigs or endrigs or other margins of fields in which crops are growing. The Access Forum considered this at some length and was clear that any restraints on access in respect of crops should be through the proposed Scottish Outdoor Access Code. Trying to define a crop in the Act was seen as far too complicated and confusing.

A Code based approach ensures that everyone understands that the right of access extends across all agricultural and forest land so we do not return to endless arguments about whether someone has a 'right' to be on the land. Instead, the Code is used to guide how the right is exercised. So, for example, damage to a field of growing crops would be avoided by walking around the margin or following a well-defined path across the field.

Recommendation:

Section 4(1)I must be removed from the draft Bill, and responsible behaviour on land where crops are growing should be dealt with in the Scottish Outdoor Access Code.

Royal Parks and Royal Estates

Whilst recognising the special circumstances relating to the Sovereign, it must be questioned whether it is sensible to exclude these areas from the right of access. The Royal Estates should not have a blanket exclusion from the general right, nor should Royal Parks.

Recommendation:

Royal Parks and Estates should not be excluded from the general right of access.

Conduct Excluded from Access Rights (Section 5)

As drafted this section is unworkable. Much of the wording is confusing, open to abuse or effectively meaningless and is unlikely to stand up in a court of law. By way of illustration - would disturbance of "any creature" include the Scottish midge? The Access Forum proposal was that this type of detail should be dealt with in the Code.

Recommendation:

Section 5 should be redrafted so that conduct excluded from the right is defined in the Code. Details of such conduct should be moved to the code and needs much rewording.

Emergency Suspension of Access Rights (Section 8)

As drafted the legislation would give local authorities a new power to suspend the right of access for reasons of emergency. This proposal did not form part of the Access Forum proposals and the need for such a power has not been demonstrated.

Recommendation:

Section 8 should be removed.

Suspension of Right of Access by Landowners (Section 9)

As drafted the legislation would give landowners a new power to suspend the right of access if they felt it was interfering with land management operations. While the intention of this clause is to allow landowners to undertake management operations, this is a power never proposed by any other government in history. It could provide landowners who were anti access with an opportunity to restrict access to huge swathes of the Scottish countryside for large parts of the year without even the need for consultation or permission being granted. Such a suspension of the right of access is unnecessary. Existing statute law plus the proposed provisions in the Code will be adequate to deal with all landowner concerns.

It is accepted that there may be legitimate reasons for restraints on access over limited areas of land and water, and for limited time periods. However, a much less extreme solution than giving land managers the powers to suspend the public's right to be on land and water would be for the Code to define particular circumstances when land managers may ask the public not to exercise their right of access while retaining the basic principle of access to all land. This is a simpler approach and recognises the basic responsibility of those exercising access rights as demonstrated very forcefully during the Foot and Mouth outbreak. This would be easily understood and would be a far more effective basis for the resolution of access disputes while recognising the needs of land managers. It is also an important enabling legal principle for those delivering path networks on the ground. With a general right to walk on all land there is an incentive to co-operate in creating path networks which will be lacking if landowners are to have the ability to remove access rights. These arguments were the basis of the Access Forum recommendations.

Recommendation:

All of Section 9 of the draft Bill must be removed. This power is unnecessary and open to widespread abuse from those landowners who are unsympathetic to access. Reliance on the Code and a more co-operative approach is preferable.

Local Authority power to exempt particular land and particular conduct (Section 10)

Local authorities would be given a sweeping power to exempt areas of land and activities on land. Again, this proposal did not form part of the Access Forum proposals and the need for such a power has not been demonstrated. The Access Forum was of the view that byelaws and management rules should be used in this type of circumstance.

Recommendation:

Section 10 should be removed.

Creation of a New Criminal Offence (Section 15)

The draft Bill proposes that police are to be given new powers to charge people with a criminal offence for refusing to leave land when required to do so. This raises the prospect of a huge drain on police resources and a far more intimidatory atmosphere surrounding public access to Scotland's land and water, even worse than that encountered in some parts of England today.

Part of the distinctiveness of access in Scotland has been a reliance on persuasion rather than the criminalisation of access problems. The criminalisation of access runs completely contrary to the traditions and laws relating to access in Scotland, and during successive discussions on access in Britain and Scotland, governments have resisted calls for any criminalisation of access as far too harsh and impractical a measure to apply to public access. Notably during the recent debates on the Countryside and Rights of Way Act for England and Wales the Government successfully resisted requests to criminalise the law of trespass.

The Access Forum's proposals were based on encouraging responsible behaviour and on trust rather than reliance on enforcement. The Access Forum specified that no new criminal offence was needed as irresponsible behaviour is already covered by various criminal offences [as listed in Annex 1 of the Code] and "breach of the peace" provides the police with the means to deal with anyone whose behaviour they are concerned about, even when such behaviour is not proscribed in statute.

The original intention of the legislation was to confirm people's traditional freedom of access to the countryside i.e. legislating to codify what happens already. It was recognised that this should be done responsibly. Responsible behaviour was to be detailed in the Scottish Outdoor Access Code and an extensive education programme was to be introduced to promote responsible behaviour. While the Access Forum proposed that it should be a voluntary code, it was recognised that the Scottish Outdoor Access Code could be used evidentially in court, for example if a land manager was seeking an interdict to prevent a person returning to their land.

This approach has been proven to be successful in other countries and is a far more palatable approach than introducing a new criminal offence. No one is suggesting that there should be a new criminal offence for landowners and managers who contravene the Scottish Outdoor Access Code. Yet this would be the logical corollary since the Code was deliberately devised to clarify the responsibilities of both sides.

Recommendation:

All of section 15 must be removed from the draft Bill. It is unnecessary, against the tradition of access in Scotland and against the spirit of the legislation.

New Local Authority Exclusion Orders (Section 16)

Local authorities would have significant new powers to make exclusion orders in respect of anyone who they believe has persistently contravened the Access Code or has done anything which exceeds their access rights. The introduction of powers such as this in parallel with new criminal offences introduces unprecedented draconian elements to public access. Exclusion orders are normally meant to deal with criminal behaviour which may attract a sentence of imprisonment and which are sufficiently grave to justify excluding the offender from a place or area. Classically they have been used where there have been threats of violence and where someone is in fear of his life, safety, property, family or whatever from someone who has already committed an offence. Clearly this is far too extreme a measure for dealing with the general enjoyment of the countryside by the public and is very unlikely to be compatible with human rights legislation.

Recommendation:

All of section 16 must be removed from the draft Bill.

Conservation Concerns

The draft Bill does not include adequate measures to deal with conservation needs especially where conservation measures cannot be taken because of landowner or local authority indifference or opposition. There is a need for SNH and Historic Scotland to be given a duty to enter land and erect advisory notices or provide associated information which influences the pattern of public access where this is necessary to protect species, habitats, landforms and geological, cultural or historic features of national or international significance. Any further requirements for limiting public access should always be based on statute law related to particular conservation legislation, not to legislation, which secures general rights of access to land and water.

Recommendation:

A new section should be added to the Bill indicating that, where SNH or Historic Scotland consider it is appropriate for conservation reasons, they will have a duty to enter land and erect and maintain advisory notices or take associated action to secure the conservation interest when this could be endangered through the public taking access to land or water. Such action should be subject to public notice and/or appeal.

Insufficient Local Authority Powers and Duties (Sections 17 to- 28)

While local authorities are to be given powers to open up access and to develop path networks, these are not sufficient. Since the start of the debate, local authorities have stressed the importance both of a right of access to all land, and the need for much stronger powers to facilitate further access. A right of access to all land is the necessary starting point for local authorities wanting to develop path networks. The draft Bill seems to be simply a restatement of the powers available to a local authority under the 1967 Countryside Act, which have proved lacking in so many ways in previous years.

Local authorities are given few absolute duties, which relate to facilitating access and rather more discretionary powers, which will be influenced by resources and political will. For instance Section 17[1] which relates to paths and clearing obstructions to access states that local authorities 'may' take action. Similar discretionary powers apply to Core Path Networks. Without active participation by the local authorities the Bill will fail to produce radical improvement to access provision for the general public.

The importance of Core Path Networks in improving access, particularly on low ground and around towns, is recognised. Local authorities are required by the Bill to compile lists of core paths, but no time limit is given for this to be completed (a limit of 5 years with 5 yearly review thereafter has been suggested). However, it is not enough for local authorities just to be required to keep a list of paths - they should be given a duty to delineate and manage adequate core path networks, and adequate resources must be made available to do this, either directly through local authority expenditure programmes or through other routes involving statutory or voluntary organisations.

In addition, the proposed basis for creating CPNs is overly bureaucratic and unrealistic - it seems from the Bill that only new paths made or managed under path orders or agreements will be included in the networks. A more flexible arrangement should be considered with the possibility for more casual paths to be included in CPNs. No reference to the role of the Local Access Forum is made nor to consultation, strategic priorities or the role of the Development Plan in CPN planning. A system of appeal for all parties should also be specified.

Recommendation:

Strengthening of local authority powers throughout the draft Bill and changing some of the powers into duties so that they are obliged to take reasonable measures to facilitate access.

Role of Rangers (Section 25)

The Bill suggests that there needs to be more local authority rangers and that they will cover privately owned land to facilitate access. However, a significant alteration to their role is also suggested, that of enforcing access proposals and using powers of arrest. This proposed new role is more like the original English warden's role of keeping people off areas, whereas in Scotland the Countryside Ranger Service has evolved in a distinctively Scottish fashion backed by Scottish legislation (Countryside (Scotland) Act 1967) and by guidance (e.g. SNH's 1998 Ranger Review - which guides the work of all Rangers in Scotland). The model for Rangers in Scotland has been mediation and education not compulsion and compliance - these proposals are therefore alien to the professional culture of rangering in Scotland.

Recommendation:

The important role of local authority Rangers in facilitating access should focus on mediation and education rather than policing and 'ensuring compliance'.

Local Access Forums (Section 26)

The consultative role of the Local Access Forums in the Bill [Section 26] has been reduced and seems to focus on resolving disputes rather than allowing a more proactive approach of earlier involvement. The Code suggests they should have a wider consultative role. Areas where involvement of the Local Access Forum would be useful could be: development of an area's access strategy; development of path networks; development and maintenance of facilities; advice to users and land managers on responsibilities as well as giving general advice on the implementation of the legislation locally. Arrangements for chairing the Local Access Forum should also be included.

Recommendation:

The role of the Local Access Fora should be strengthened and they should be used as the key bodies for discussion and resolution of local access issues.

Register of Land Excluded (Section 27)

The Bill requires local authorities to set up and maintain for public inspection a register of land in respect of which access rights are not exercisable [section 27]. It has not been suggested why this is necessary and implies a significant burden on local authority resources, especially if land managers seek to register those areas of their land where the right of access would not be expected to apply, including farmyards and steadings.

Recommendation:

The register of excluded land is an unnecessary and probably unachievable burden to give local authorities and therefore should be removed from the legislation.

Wild Camping

The consultation document states that wild camping is currently illegal under the Trespass (Scotland) Act 1865 [see Code, Annex1] and the Bill does not propose to change this [p18]. However, the Code says 'the right of access extends to wild camping' and gives strong and clear guidance and examples of where it is acceptable [Code p6 & p30]. This confusing situation should be clarified.

Recommendation:

The legal situation should be clarified so that the right does extend to wild camping. The 1865 Act should be amended so that recreational camping is clearly excluded. The Code indicates the types of responsible behaviour that make wild camping acceptable under the new right of access.

Liability of Landowners

This is not dealt with in the Bill, though the Code clearly states that 'in exercising the right people must take responsibility for their actions' [p2 & p16]. As recognised in the consultation document this appears to be of concern to landowners. They fear that though there is no increase in the duty of care owed by land managers for people's safety, more people taking access could result in an increase in the number of accidents, leading to an increase in liability insurance premiums. It was the advice of the Access Forum that access should be taken at the individual's risk. Ministers concluded it was unnecessary to change the existing law [p18]. Inclusion of a clear statement regarding liability in the Bill might reassure landowners generally about the changes in access arrangements. Insurers advise that liability insurance premiums are unlikely to rise due to the introduction of this legislation. Even if this were not the case it is difficult to see how landowners could argue that they should be able to keep the public off their land and water simply because their insurance premiums might rise. Landowners would simply have to come to terms with the reality that this was part of life as a landowner in modern Scotland.

Recommendation:

A statement on liability should be included in the Bill. As proposed by the Access Forum and as suggested by the draft Code, access should be taken at the individual's risk and this should be enshrined in law.

Conclusion

Although a right of access would be enshrined in statute, the overall intentions of the draft Bill have been undermined by additional powers, exclusions and exemptions which go far beyond the proposals of the Access Forum. The effect of this would be to reduce the rights of access traditionally enjoyed by the public in Scotland.

The Foot and Mouth crisis has made it very clear that public bodies already have or can obtain extra powers to restrict access when this is necessary. It has also shown that the public will behave responsibly where there is a real need to restrain access. The degree to which Scotland's economy is dependent on our unique traditions of access to the countryside has been made plain. Further statutory restrictive powers or exclusions are neither necessary nor desirable.