Could a 2003 act that greatly im­proved ac­cess in Scot­land work for the rest of the UK?

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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.


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.

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