On 23 January 2003 the Scottish Parliament passed legislation that fundamentally changed the balance between public and private interests over much of the land and water of Scotland.
The Land Reform (Scotland) Act 2003 was undoubtedly one of the main achievements of the Scottish Parliament in its first term. Part 1 of the Act established statutory rights of access to land and water and was the culmination of many decades of campaigning for such rights. It provides opportunities for local communities and crofters to acquire land and water through right to buy provisions. This note deals only with the access part of the legislation.
The campaign to safeguard public access rights was very long, reaching back into the 1890s when the Liberal MP, James Bryce, first placed his Access to Mountains (Scotland) Bill before the Westminster Parliament. All subsequent legislative efforts, including in 1994 another private member's Bill, this time from the SNP's Margaret Ewing, failed as successive governments shied away from any prospect of trying to get such legislation through the House of Lords.
By the 1990s however Scottish Labour MPs, no doubt encouraged by the enthusiastic hillwalking Labour leader, John Smith, were pressing the case for "right to roam" legislation for Scotland. Dennis Canavan, Sam Galbraith, Calum Macdonald, John McFall and Brian Wilson soon emerged as leading voices and, by the time Donald Dewar was laying out Labour's programme for the Scottish Parliament, access legislation was central to the proposed land reform agenda.
Protecting public access rights and modernising the arrangements for securing paths and other access routes, as well as creating new ones, now had a high political imperative as new landowners ignored access traditions, creating their own private kingdoms, and the intensification of modern agriculture destroyed countless paths and tracks in the lowlands.
In 1994 a report from Scottish Natural Heritage (SNH), the government's advisers on outdoor recreation and the countryside, called for an ambitious new approach which would give Scotland access arrangements that would be "amongst the best in Europe". As ideas for new access legislation evolved in the following years many looked across the water rather than south of the border to see what would fit Scotland best. Indeed the new access legislation coming into England and Wales, through the Countryside and Rights of Way Act 2000, was viewed with some concern with its limited scope and complex and potentially bureaucratic mapping procedures. There was virtually no support from government, recreation or land managing interests for such an approach in Scotland.
The Land Reform (Scotland) Act 2003 clearly sets down in statute a presumption in favour of access, if taken responsibly, over most areas of land and water. It establishes statutory rights of non-motorised access (e.g. for walking, cycling, horse riding, canoeing) to land and inland water for passage, recreation, education and commercial activities.
The access rights must be exercised in a responsible manner and there are reciprocal obligations on land managers to act in a responsible manner towards access takers, both in their behaviour and in the way they manage the land. Guidance is given in a Scottish Outdoor Access Code, a comprehensive explanation of responsible conduct drawn up by SNH, in consultation with other interests, and subject to Ministerial and Parliamentary approval. The Code was approved in July 2004 and published in February 2005 when Part 1 of the Act came into effect.
Land over which the statutory rights do not apply is relatively limited in extent, including the curtilage of buildings and farmyards, quarries, railway property and airfields. Land which is growing crops is not included within the right but Ministers made clear to the Parliament that access along field margins, along tramlines (tractor drills) and between rows of vegetables was within the right so long as no damage or disturbance was done.
The arrangements for protecting and developing path networks superceded the existing rights of way arrangements which had proved very difficult to operate in recent times. Local authorities gained extensive new powers to remove obstructions and create new paths where these were needed.
Many of those involved in the protracted debates and discussions that led to this legislation were very impressed with the outcome. It provides a legislative structure which is perhaps better than that found in any other European country, and gave Scotland an outstanding opportunity to develop all forms of non-motorised outdoor recreation, an undoubted benefit to the health and social well-being of the nation.
It is also a tribute to the Scottish Parliament. From Draft Bill stage to the final outcome this legislation underwent a great deal of redrafting and amendment. In particular it was massively improved by the Justice 2 Committee which had main responsibility for the Bill.