On 25 February 2003, the Land Reform Bill received Royal Assent and went on
the statute books as the Land Reform (Scotland) Act 2003.
This marked the culmination of a process which began when the Bill was introduced to the Scottish Parliament on 27 November 2001.
The Bill dealt with three distinct areas, Access, Community right to Buy and Crofting Community Right to Buy. "An Act of the Scottish Parliament to establish statutory public rights of access to land for recreational and other purposes, and to extend some of the provisions for that purpose to rights of way and other rights; to make provision under which bodies representing rural and crofting communities may buy the land with which those communities have a connection; and for connected purposes" was how the preamble put it. NEMT concerned itself only with the Access provisions, Part 1 of the Bill, and devoted considerable effort to responding to the various consultations and lobbying MSPs on issues which needed to be addressed. If the designation process for the Cairngorms National Park showed the Scottish Executive and Parliament in their least favourable light, the experience of Land Reform was much more positive. Bodies such as NEMT and individuals were able to have an input to the ongoing legislative process.
Part 1 of the Act secures the legal right of access for the public, subject to responsible behaviour in relation to the land itself and those who live on and make their living from it while exercising the right. It also defines the obligations of landowners and specifies areas excluded from the right such as buildings and their immediate surroundings, sports and playing fields and crops. It was recognised during the debate on the legislation, that the Act itself could not effectively provide all the fine tuning necessary to address often complex issues. The Act will therefore be supplemented by the Scottish Outdoor Access Code.
The Access Code will function in a similar way to the Highway Code, defining good practice in relation to access for both the recreational user and the land-manager and having evidentiary status in any legal action. Scottish National Heritage are required to draw up a draft code, consult on it and submit it to the Scottish Ministers. Both Ministers and Parliament must approve the Code before it can come into effect. SNH are required to promote and publicise the Code and to amend it as necessary over time. Local authorities also have a duty to publicise the Code. The Draft Code is expected to go out for consultation some time in March. If that does not happen, the consultation will be deferred till after the Parliamentary elections in May. It is therefore likely to be well into 2004 before the Code and some of the new rights in the Act take effect - in particular those relating to horse riders, canoeists and cyclists. It is also uncertain at present just when local authorities will be able to make use of their new powers to remove signs which have been put in place to confuse and deter members of the public seeking to exercise their right of access.
Advice from the Moutaineering Council of Scotland is that access for climbers and hillwalkers should not be greatly affected during this interim period. There was considerable discussion during the access debate about the validity of the assumed common law right of access to wild land widely regarded as part of the Scottish legal tradition. No definitive view emerged and the Executive took the view that the new legislation solves the problem by establishing a new and unambiguous statutory right. We are likely to see, though, that there is still considerable scope for ambiguity when discussion of the Access Code gets underway.
Nonetheless, the Land Reform (Scotland) Act 2003 represents a landmark in enabling access to the Scottish countryside. It's worth remembering that this Act, and other legislation which makes up the Scottish Executive's land reform programme, represent the first laws on land ownership and access to the countryside to be passed by a Parliament democratically elected by the whole adult population of Scotland.
Will Campbell, 25 September, 2002
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