Could a 2003 act that greatly improved access in Scotland work for the rest of the UK?
Would Scottish land access laws work for the rest of the UK, asks Sara Maitland
The Land Reform (Scotland) Act 2003 is a generous, elegant and profoundly civilised piece of legislation. This is the instrument that establishes, among other things, the statutory right of access when responsibly exercised to almost everywhere in Scotland. (There are some exceptions; among them people’s gardens, school grounds and MOD bases.)
What makes the Access law so ‘civilised’ is that it is primarily permissive and is to be interpreted through the Access Code. The code is more a discussion of principles than a list of regulations and is addressed to land managers (who also have responsibilities) as well as those exercising access.
Everyone who goes into the countryside, anywhere in Britain, will learn something by reading it. It is sensible, coherent and above all presumes responsibility and goodwill on both sides and so provides a basis for discussion rather than confrontation.
So I have been thinking about whether this sort of legislation could or should be extended to the rest of the UK. My thoughts are predicated on the basic idea that access to open spaces is not just good for people, it is a good in itself – a ‘right’. However, I have to face the fact that there are some real difficulties and differences involved here.
The first is simple – the population density of Scotland is much lower than anywhere else in the UK. It has 68 people per square kilometre, as opposed to 413 in England; 149 in Wales and 135 in Northern Ireland. In rural areas of Scotland, the number is even lower, falling to 8.6 in Highlands and Islands. That means that in Scotland there are fewer people to be disrupted or disturbed than there would be elsewhere in the UK.
In addition, far less of the countryside is in arable production. Where land is being farmed there is going to be more tension: the Access Code bars walking through standing crops – and defines grass grown for silage or hay as a crop once it is tall enough to be damaged by walkers. Am I sure I can tell what that point is? Responsible access on farmland requires considerable knowledge.
Less simple, but important, is the extraordinarily inequitable pattern of land ownership in rural Scotland: about half the private land is owned by fewer than 500 people. A good deal of this vast acreage has little function other than as sporting estate and so is not in use by its owners for large parts of the year (absentee landlordism has been a problem in Scotland for at least two centuries) so there is a genuine sense of unfairness. A surprising amount of the Access Code is taken up suggesting how deer stalking and climbing access need not conflict.
READY FOR FREEDOM
Above all, there is culture and tradition. There is a prevalent myth that there is no Trespass Law in Scotland. This is not in fact true; trespass has long been a delict (civil offence) and was made criminal in some circumstances in the Trespass (Scotland) Act of 1865. But the myth itself suggests Scotland has a less aggressive attitude to private land, even in law, than other parts of the UK. We were more prepared for our freedom.
Open access is, I believe, a good thing. People further south should envy us – but they should also begin a thoughtful, educational debate on what is appropriate and possible. The right of access is not going to happen by chance any time soon.
Sara Maitland is a writer who lives in Dumfries and Galloway. Her works include A Book of Silence and Gossip from the Forest.