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Remit:
To consider and report on matters relating to the administration
of civil and criminal justice, the reform of the civil and criminal
law and such other matters as fall within the responsibility of
the Minister for Justice, and the functions of the Lord Advocate
other than as head of the systems of criminal prosecution and
investigations of deaths in Scotland.
Membership:
Pauline McNeill (Convener)
Bill Butler
Marlyn Glen
Mr Michael Matheson
Mr Stewart Maxwell (Deputy Convener)
Margaret Mitchell
Margaret Smith
Committee Clerking Team:
Clerk to the Committee
Alison Walker
Senior Assistant Clerk
Douglas Wands
Assistant Clerk
Douglas Thornton
The Committee reports to the Parliament as follows—
Scottish Outdoor Access Code: Proposed Code
1. Section 10 of the Land Reform (Scotland) Act 2003 (“the
Act”) requires Scottish Natural Heritage (SNH) to draw up
a proposed Scottish Outdoor Access Code setting out guidance on
the rights and responsibilities of access for land managers and
those exercising access rights. Sections 10(3) and (5) of the
Act require that the proposed Code be approved by the Scottish
Ministers and by the Parliament under affirmative resolution procedures
before it can be issued by SNH.
2. On 7 June 2004, the Committee issued a call for written evidence
on the Code. A closing date for submission of comments was set
for 21 June 2004. By that date, 17 submissions had been received;
these are available to view on the Scottish Parliament’s
website.
3. The Environment and Rural Development Committee considered
the proposed Code at its 16th and 17th meetings 2004 (Session
2) and subsequently wrote to the Justice 1 Committee, strongly
encouraging it to recommend that the Code be approved and raising
a number of points for clarification with the Minister.
4. At its 26th Meeting 2004 (Session 2) the Justice 1 Committee
considered the Scottish Outdoor Access Code: Proposed Code (SE/2004/101)
(“the Code”).
5. The Minister for Environment and Rural Development (Ross
Finnie) had lodged motion S2M-1455 calling on the Committee to
recommend that the Code be approved. The Deputy Minister for Environment
and Rural Development (Allan Wilson) attended the meeting and
participated in a debate on the motion. The motion was moved and
agreed to.
6. The Committee noted in submissions of written evidence a
number of concerns, including those of the Environment and Rural
Development Committee, which it raised with the Deputy Minister
for Environment and Rural Development (“the Minister”).
Those concerns and the Minister’s responses are noted below
for the benefit of the Parliament in considering the motion.
Crossing railway lines
7. A number of responders, including the Ramblers’ Association,
the Scottish Countryside Activities Council, the Mountaineering
Council of Scotland (MCoS) and the Scottish Canoe Association
raised concerns about guidance to the public on how to cross railway
lines that pass through areas of farmland, woodland or moorland
where statutory rights will apply on both sides of the track and
the public will expect to use any obvious crossing point to get
from one side to the other. Concerns were also expressed about
the position of Network Rail, which has been unable to agree any
guidance on this matter with SNH.
8. The Minister referred to paragraph 4.24 of the Code, which
reads—
Land on which access rights cannot be exercised includes farmyards,
railway and airfield infrastructure, building and construction
sites, gardens, the curtilages of buildings and some dams (see
paragraph 2.11). In using and managing this land, you need to
take account of how this might affect the exercise of access rights
on neighbouring land, particularly through those farmyards and
across those dams where people might currently take access with
few problems arising. In these sorts of situations, it would be
reasonable for people to expect that such customary access could
continue. Rights of way may cross your land and these rights will
continue.
9. The Minister explained that the wording of this paragraph
is intended to cover situations where land contiguous to railway
lines is subject to access rights and stated that railway lines
are also covered by general advice and guidance in the Code on
careful and responsible access to land. He stated that it was
not the intention of the Code to diminish the health and safety
responsibilities of land managers in any way. In his view, it
was not appropriate to go beyond this guidance. The Committee
welcomed his assurance to press Network Rail to address the issues
raised in partnership with the National Access Forum.
Updating the Code
Submissions from the Scottish Countryside Rangers Association
and MCoS sought clarification on the timescales, procedures and
roles of the relevant bodies in respect of reviewing and updating
the Code. The Committee noted the Minister’s explanation
that the Code would be kept constantly under review by SNH, which
would propose updates to the Code in consultation with the National
Access Forum, as appropriate. Any updates would be subject to
approval by the Scottish Ministers and the Parliament.
Signage
10. The Environment and Rural Development Committee noted that,
whilst the Code sets out a prohibition on land managers from erecting
signs to prevent or deter access, it does not appear to provide
guidance on the nature of or language to be used on signs that
do not come within the prohibition and may be erected. The Committee
felt that it may be appropriate for guidance to be issued to landowners
on provision of signage for this purpose. In response, the Minister
stated that SNH is currently in discussions about guidance on
signage and undertook to keep the Committee informed of decisions
reached in relation to this matter.
Access to working farms
11. The Committee noted in evidence from NFU Scotland an apparent
inconsistency in the wording of the Code in respect of exercising
rights of access to farmyards and fields where there are horses,
cattle and other farm animals compared with advice in the Code
on situations where accessing land with farm animals should be
avoided. In response, the Minister gave assurances that, where
it exists, “customary access” to farmyards is expected
to continue, explaining that the definition of customary access
is where access to land has been historically enjoyed. The Minister
informed the Committee that there are ongoing discussions between
SNH and the Health and Safety Executive and drew attention to
section 5(2) of the Act, which provides that the liability of
land owners is not affected by the Act or its operation.
Access to fields with crops
12. A number of submissions raised questions about the exercise
of rights of access to fields with crops and, in particular, the
use of the term “unsown ground”; some responders felt
that tramlines created by the wheels of agricultural machinery
should be excluded from this definition. The Committee noted the
Minister’s response that tramlines should not be excluded
from the definition, as to do so would be inconsistent with the
intentions of the Act. The Minister also commented that the Code
includes advice on avoiding damage to crops.
Liability
13. The Committee noted concerns from the University of Aberdeen
Law School about the need for a specific statement on the legal
principle of volenti non fit inuiria, in terms of which it is
a defence to an action by a person who has suffered injury or
damage to show that the person willingly accepted the risk of
injury or damage, knowing the risks involved but accepting them
nonetheless. The Minister agreed that there was a need for the
principle to be stated in the Code and explained that such a statement
had been included at paragraph 3.11 of the proposed code. Commercial
and not-for-profit activities
14. The Committee sought confirmation on the position regarding
activities carried out commercially or for profit; the Minister
explained that access rights extend to such activities provided
that the activity in question could be carried out by anyone else
exercising access rights – for example, a paid mountain
guide leading a party of hill walkers or a commercial photographer
taking photographs of the natural heritage.
15. The Committee also sought confirmation on whether charities,
such as the Royal Society for the Protection of Birds (RSPB Scotland),
would be able to exercise rights of access in the course of not-for-profit
activities. The Minister compared the position of charities with
that of non-governmental organisations, which are specifically
covered, and explained that any doubt over the specific position
of charities would be subject to judicial interpretation in the
context of the Act.
Access for disabled people
16. The Committee raised with the Minister concerns expressed
in written evidence that the Code makes no substantive mention
of the needs of disabled people despite specific mention of this
in the Act. The Minister agreed that land managers should consider
the needs of all land users and pointed out that the wording of
the Code reflects this. The Minister also divulged that it is
planned to reinforce responsibilities under the Disability Discrimination
Act 1995 in guidance to be issued to local authorities in respect
of their promotion of access to the countryside.
Access to golf courses
17. The Committee considered the issue of access to golf courses
as there appeared to be some inconsistencies in the Code which
at one point suggests that access rights can only be exercised
to cross over a golf course but elsewhere refers to customary
access to some courses for activities such as sledging. The Minister
stated that, where for sledging or other activities it existed,
customary access would prevail. The Committee also asked whether
public funding might be made available to provide paths around
or across courses. The Minister explained that additional resources
had been made available to SNH and local authorities to develop
access and core paths and that this might be a source of funding
for golf course managers.
Integration with Nature Conservation (Scotland) Act 2004
18. The Committee highlighted concerns raised by RSPB Scotland
that the Code refers frequently to the Wildlife and Countryside
Act 1981 which has been updated by the Nature Conservation (Scotland)
Act 2004 and asked whether the Code would be updated to include
such reference. The Minister stated that legislation will regularly
change and that the requirement to comply with the law covers
all relevant enactments.
19. The Committee also asked whether the Minister considered
that provisions in the Nature Conservation (Scotland) Act 2004
relating to reckless disturbance and third-party damage to designated
sites could be used in an inappropriate way by land managers to
undermine the intentions of the land reform legislation. The Minister
responded that the Act does not provide powers to deny access
but that cases of reckless disturbance would be a matter for the
courts, not the Code.
Publicity for the Code
20. The Committee sought information about the intention to
publicise the Code and associated guidance to the general public
and land managers. The Minister explained that there was a duty
on SNH to publicise the Code and that a summary, consistent with
the full Code, would be widely circulated. The Minister gave a
commitment to share this shortened Code and associated guidance
to local authorities with the Committee in late September.
Further action
21. The Committee welcomed the Minister’s commitment to
act on his assurances and itself undertook to report on the Code
swiftly in order to ensure that implementation of the Code would
not be delayed.
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