Exploring wild Scotland, or making Scots wild owing to inappropriate access? The right to roam in a summer of staycations
by Malcolm Combe - Posted on 31 July 2020
The Covid-19 pandemic and the related public health response continues to play out in a variety of ways. The initial lockdown, which required people to stay at home, save for certain recognised reasons including local outdoor exercise, and now the gradual easing of lockdown, has led people to engage with outdoor recreation and leisure trips in manners that is without precedent in recent years. How does this interact with Scotland’s outdoor access law, commonly known as the right to roam? In this post, Malcolm Combe considers the legal landscape and current controversies.
Access to land can be a contentious topic in Scotland and the UK as a whole at the best of times. To some, outdoor access is bound up with issues of land politics and power more generally. There may also be occasions where questions about land use pit entirely well-meaning individuals and interest groups against each other. When you layer a pandemic on top of that, with the related social distancing measures (including a not fully re-mobilised hospitality sector) and the marked decline in overseas holidays as a result of that disease, the potential for new or more extreme land use flashpoints emerges as Brits head for staycations armed with tents and plucky mind-sets to make the best of the summer.
The aim of this post is not to criticise anyone, be they a wizened outdoorsy-type who has been Munro bagging and bothying for years, a first-time camper just trying to have a nice holiday in a difficult situation, or a farmer, crofter, gillie, or other rural businessperson who wants to mitigate any further disruption in an already unique holiday season. All these people have legitimate interests that should not be underplayed. The circumstances of the pandemic bring quite a stress-test to the law relating to outdoor access though, so it is proper to think about that without unduly heckling any of the personalities that might be involved.
An introduction to Scots law as regards public access to land
Let us begin with a snapshot of the law. Scots law has long recognised some traditional routes and situations where non-owners can take access to land, such as over public rights of way. Those rights of passage from one public place to another are not the subject of this post. Instead, the focus here is on a more general right of access, including for recreation.
In the Nineteenth century, the Scottish Member of Parliament James Bryce sought to introduce his Access to Mountains Bill to the UK Parliament. Granted, there was a custom of access to Scottish hills, but customs can only take you so far. There was also a more than theoretical possibility that any custom could meet the clunking force of Scots property law. That the Scottish courts would only fortify that clunking force with a court order in non-trivial circumstances and after a suitable court process had been followed offered some consolation to proponents of outdoor access.
Bryce’s push for legislation was unsuccessful. Save for some statutory reform (notably in relation to long-distance routes which came only in the Twentieth century, through the Countryside (Scotland) Act 1967), not much happened in relation to outdoor access laws for approximately a hundred years thereafter. This left people to rely on a combination of loose custom coupled with existing public rights of way and certain other traditional rights of access over the foreshore and navigable rivers. Those traditional rights remain, but the overall position changed markedly at the beginning of the Twenty-First century, with the enactment of the Land Reform (Scotland) Act 2003.
Part 1 of the Land Reform (Scotland) Act 2003 introduced rights of access to be on or to cross land, subject to limited exceptions. The exclusions from access relate to either the characteristics of any given parcel of land or the conduct of a (purported) access taker. No prior bargain or acquiescence by a land manager is required to authorise the (responsible) crossing of land or any (responsible) recreational, educational and in some cases commercial activity on land where access rights are exercisable (which I will refer to as “access land” for ease). Such conduct has already been authorised by the Scottish Parliament, provided it is responsible; that is to say, it does not interfere with anyone else’s rights (including the rights of another access taker). In fact, the land owner (or other occupier of land) is also under an obligation to act responsibly when using, managing or otherwise conducting the ownership of access land. Non-access land would include land where crops are growing, domestic gardens, schools, and anything else that is referred to in section 6 of the 2003 Act. As regards the conduct-based exclusions, there is a “banned list” in section 9 that can never be authorised under the 2003 Act, including “hunting, shooting and fishing”, most forms of motorised access, and of course anything that would be in contravention of the existing criminal law. From the other perspective, there are also some situations which can never be responsible land owner conduct in terms of section 3(2)(a) read alongside other sections including section 14(1), namely where they act (or indeed fail to act) in a way that blocks or discourages access without good reason.
The preceding paragraph highlights some of the key legal provisions, but also of importance is a free and accessible companion document known as the Scottish Outdoor Access Code. The Access Code is provided for in section 10 of the 2003 Act and the text of it, which was approved by the Scottish Parliament, was sculpted and promulgated to help people understand what access rights are and how they are to be used and respected. The Access Code is also an important factor in determining whether an access taker or land manager has acted responsibly, in that any court that has to deal with a dispute about whether land access or management is responsible has to have regard to its terms. Further, whilst the Access Code does not strictly have the same standing as a statutory law, it does fill in some points that could not be fully explored in the legislation. One such point is what might be classed as recreational access, a term that is not itself defined in the 2003 Act. For present purposes, it is noteworthy that recreation includes “wild camping” (see 2.7 of the Access Code).
Access rights in 2020
In March this year, the Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020 made it an offence to leave the place where you were living without a reasonable excuse. It goes without saying that this curtailed outdoor access pursuits somewhat. That said, one of the reasonable excuses for leaving your home related to outdoor exercise, and the underlying access regime in Scotland was not actually changed. This meant existing rights of way and the right to roam could still be enjoyed as part of an expedition that complied with the emergency regulations. This was explained in more detail in a note that I prepared for Scotways, aka the Scottish Rights of Way and Access Society.
Government guidance at the time was to the effect that people should not venture too far from their home when exercising, with a suggested limit of five miles. This led to some press coverage about pressure of access in rural areas near Scottish population centres in the weeks that immediately followed lockdown. As lockdown has eased, the focal point seems to have shifted to places that can now be reached by motor vehicle (be that a camper van, a car with a caravan, or a car with a tent in the boot). It will be recalled that motorised access is not generally catered for in the 2003 Act, save where a motorised vehicle is a mobility aid for someone with a disability and that adapted mobility aid is properly in use. Anyone parking a car, motorbike or other vehicle on someone else’s land would not be able to rely on the 2003 Act to do so.
What about the camping itself? One does not need to look too strenuously on the internet to find reports of activity by campers that is not acceptable, including this incident where three people were charged with vandalism for chopping down trees for firewood. The Courier reported on conduct that seems, at first glance, criminal, but what about campers pitching a tent in an area of open ground in Dornoch when there is a campsite nearby, as has been reported in a local newspaper? The Herald has also reported on the issue, highlighting problems at Glen Etive. Meanwhile, on 28 July a BBC Radio Scotland programme featured a contributor from the Highlands who said “Dirty campers are causing a menace and really upsetting the population”, and two days later Prògram Choinnich on BBC Radio nan Gàidheal had a lengthy discussion where discussants bemoaned the “sgudal” [rubbish] of all sorts that inconsiderate visitors were leaving behind.
These are not concerns that should be dismissed out of hand. Should all of this be taken as a sign the law needs to change generally? Or might there be scope for more localised regulation of camping, as is the case in some areas within the Loch Lomond and the Trossachs National Park Authority?
My own tentative conclusion at this stage is it would be too soon to rush towards a blanket change in the law. To coin a phrase, there might be a danger of throwing the baby out with the bathwater, and any rush to correct the situation now might soon become an overcorrection that needs to be rectified if and when normality returns. Before even thinking about reform though, it is worth stressing that often the activities that are being complained of do not fall square within the realms of wild camping anyway, as is highlighted in this Press and Journal article by Davie Black of Mountaineering Scotland. The more egregious examples of misbehaving campers would certainly not be responsible access. A focus on access rights might actually deflect from other behaviour that is clearly unacceptable (such as is highlighted in this report of an increase in fly-tipping and illegal activity at historic sites) which in an ideal world would be subject to suitable enforcement action (subject to the usual disclaimer about resourcing being strained in all sectors at the moment).
As regards responsible access, in the shorter term an education and publicity campaign could be appropriate, in the hope people who might otherwise camp inconsiderately can appreciate the potential harm they can cause. It would be important to deliver this message in a way that does not lead people to fall out of love with the great Scottish outdoors (this blog post demonstrates the difficulty of walking that tightrope). With education in mind, it is worth flagging there is already some guidance about informal camping available online (PDF), plus more general camping guidance is provided by Scottish Natural Heritage.
Does this mean that I think everything is perfect? I would not go that far. Just because I do not think the case for changing the primary legislation has been made out does not mean there is nothing that can be done. It might be that local byelaws can be changed in extreme circumstances (although, notably, that is not being called for in Glen Etive). Away from actually changing the rules, another thing to consider is the aforementioned Scottish Outdoor Access Code. This important document that goes to the heart of what is responsible land access and land management will be due a refresh in the not too distant future in any event, with technological advances like drones and e-bikes worthy of consideration given they were not fully catered for approximately fifteen years ago when the Scottish Parliament approved the Access Code. It might be that the provisions about wild camping can be revisited with the lessons learnt from this summer being part of that exercise.
Land owners, land managers and interest groups might be worried about access issues for a wide ranges of reasons, such as general pressure of access to a particular spot or irresponsible land access causing damage to property or wildlife. There might also be issues relating to privacy or safety, or simply the potential for access takers to get in the way of a chosen land use. All that said, prioritising those interests too much can mean society loses out on health and social wellbeing benefits that arise from a regime that allows suitable recreational access to land or missed opportunities for sustainable economic activity, especially at a time when these are at a premium owing to the response to Covid-19.
These are concerns that are not peculiarly Scottish. Any sensible legal system which recognises private property rights in land must have a means to deal with non-owners taking access. The question is whether Scotland has found an appropriate balance, and more particularly whether it has an appropriate balance in these extraordinary circumstances. It might be that some of the issues around what has been called “dirty” camping will ease in the coming weeks, in much the same way as the spike of access to farmland seems to have fallen out of the press. If it does not though, the appropriate response will need to be considered carefully, but for now I would counsel against a rush to make any blanket changes to an access regime that generally serves Scotland well.