Hansard

I am sorry, convener. I was debating paragliding with my officials in the context of the point that was being made.Amendment 32, which is the critical amendment in the group, proposes to remove section 9(2), which lists conduct that is excluded from access rights. Amendments 30 and 155 seek to replace subsection (2) with slightly different versions of the general provision that is set out. Amendment 31 seeks to expand section 9(1)(iii)(e) to exclude from access rights "being responsible for a dog or other animal which is not under proper control".I will explain our approach to drafting subsection (2). The subsection sets out a number of clear and uncontentious exclusions from access rights; for example, committing an offence is conduct that is not included within access rights. Conduct"which is not an offence but for which a sanction is provided by or under an enactment"is also excluded from access rights. It seems entirely appropriate that that is the case. If someone breaches a statutory condition, their action will certainly be irresponsible and that will put them outside the scope of access rights.I looked at amendment 31 in the context of the point that was raised by Mr Stevenson on behalf of Mr Canavan. In anticipation that I might be asked to give an example of just such an eventuality, I sought but was unable to identify a sanction that might be relevant to the specific exercise of access rights. It appears that section 9(1)(b)(ii) serves no useful purpose. I am happy, therefore, to accept amendment 243, in the name of Dennis Canavan, which was moved by Stewart Stevenson.However, subsection (2) seeks to address a number of specific concerns. It refers to the most obvious forms of conduct that should be excluded from access rights. It provides that angling is not a recreation activity that is included in access rights. That accords with the recommendations of the access forum and the advice that was given by Scottish Natural Heritage, which acknowledged that angling requires management and can be of significant commercial value to the landowner. A considerable body of common law and statutes relating to fishing could also be at odds with a general right of access for fishing.Put simply, the bill is not the place to deal with the issue. There is scope to improve access for fishing and we intend to review that matter. I would assure Dennis Canavan if he were here, and I assure Stewart Stevenson and all concerned, that we will consult fully all who are interested on legislation to extend that access. With those assurances, I hope that amendments 56 and 281 will not be moved, which will allow the subject of those amendments to be dealt with in other legislation.We also have concerns about the unregulated use of metal detectors. We received several representations about that during the consultation on the draft bill.It is an appropriate time to explain the items that are listed under subsection (2), as most are lifted from pertinent legislation. Members are familiar with paragraph (a) and understand that we will return to that at stage 3, as my colleague Mr Finnie has assured members. We propose to replace paragraph (b), which excludes angling—I just dealt with that—and paragraph (c), which refers to"taking away anything in or on the land".I will talk more about that later. The words"using or having a metal detector"are similar to a provision in the Countryside and Rights of Way Act 2000, whose effect we wish to replicate in the bill.Paragraphs (e), (f), (g) and (h) are similar to provisions in schedule 2 to the Countryside (Scotland) Act 1967, which provides"General restrictions to be observed by persons having access by virtue of Part II of this Act to land which is or which gives or forms part of access to open country."That schedule says that section 11(1) of that act"shall not apply to a person who, upon the land in question, commits any crime or offence, or who without lawful authority … (c) takes, or allows to enter or remain, any dog not under proper control"or"(d) wilfully kills, takes or molests any animal, bird or fish or takes or injures any eggs or nests"—I will talk more about that in connection with amendment 139. The schedule also refers to a person who"(e) bathes in any non-tidal water in contravention of a notice displayed near the water prohibiting bathing, being a notice displayed, and purporting to be displayed, with the approval of … the general or district planning authority;(f) engages in any operations of or connected with hunting, shooting, fishing, snaring, taking or destroying of animals, birds or fish, or brings or has any engine, instrument or apparatus used for hunting, shooting, fishing, snaring, taking or destroying animals, birds or fish;(g) wilfully damages the land or anything thereon or therein;(h) obstructs the flow of any drain or watercourse, opens, shuts or otherwise interferes with any sluice-gate or other apparatus, or neglects to shut any gate or to fasten it if any means of so doing is provided".Section 9(2)(i) of the bill excludes"in respect of canals, swimming, diving, sailing and wind surfing"and is a reference to existing British waterways legislation. The Executive introduced paragraph (j) in the context of sections 11 and 12.I hope that that has explained in some detail, which it is probably worth while doing, that the exclusions in subsection (2) are not new but are lifted from existing legislation—in particular, from the Countryside (Scotland) Act 1967.I therefore consider it a better and clearer approach to exclude specific activities rather than to rely on general provisions such as those in amendments 30 or 155, the wording of which is wide open to interpretation. For example, what exactly would constitute"reckless interference with the owner's use of the land"and what might constitute"significant damage to the land"?I submit that those are high tests. The clear inference is that doing damage that falls just short of being "significant" is permissible and that is certainly not what I or, I believe, a committee as responsible as yours, convener, would intend. We must cover irresponsible conduct.One of our main purposes in introducing the bill—a purpose that I believe the committee supports—is to establish clear and unambiguous rights of access to land and to cut through confusion where confusion exists. Section 9(2) is clear. Amendments 30 and 155 would serve only to muddy the waters and perpetuate any confusion that exists. I therefore hope that members will agree not to move them.Amendments 161 to 167 would also delete most of the provisions in subsection (2). I have already spoken about those provisions and their origins, and explained why we believe them to be the appropriate way to proceed. In that context, I hope that Mr Stevenson will agree not to move the amendments.Amendment 245 would establish a higher test for the exclusion from access rights of conduct that interferes with drains. Rather than requiring only a demonstration that the interference was deliberate, the amendment would require a demonstration that there was malice. Again, I consider that too high a test. If he were here, I would hope that Dennis Canavan would agree not to move the amendment and I hope that anyone else who was intending to move it will do the same. The bill covers deliberate interference. Such interference would be irresponsible, irrespective of whether or not it could be shown to have been done with malicious intent.I have already referred to amendment 55. The consultation draft of the bill made no specific provision for golf courses. As has been said, that meant that access rights would have been exercisable on golf course except when in use for golf. During consultation, some people argued that the "in use" test was difficult to apply to large areas such as golf courses and that access to golf courses should be allowed at all times. The point was made that it is often necessary to cross golf courses to get to beaches, for example. At present, that happens regularly and without problems. Others argued that golf courses could be dangerous places and that there should therefore be no general right of access to them.As I have explained on other occasions and in a different context, the bill takes a compromise approach to those conflicting opinions. It allows people to cross golf courses responsibly but not to enter them for recreational purposes such as a picnic or a game of football. That is a reasonable approach. Access across golf courses to areas such as beaches can continue, but people cannot stop for a picnic on the way. I hope that Stewart Stevenson will agree not to move amendment 55.Amendment 139 seeks to introduce a new provision that would exclude from access rights doing anything to disturb animals or commercial activity on land. Amendment 98 would introduce a similar provision relating to the disturbance of wildlife and would exclude camping on enclosed land. Amendment 98A would have the effect of removing from amendment 98 the words "camping on enclosed land".Section 2 already provides that access rights must be exercised without undue interference with the rights of others. The access code will contain more detailed guidance on the responsible exercise of those access rights, and that is something that we have discussed at great length. That will cover situations where commercial activities are under way. I am satisfied that existing legislation, which refers to anyone who "wilfully kills, takes, molests or disturbs any animal, bird or fish or takes or injures any eggs or nests", provides for offences of intentional disturbance of wildlife. As members will shortly learn, we intend to address reckless disturbance in a forthcoming bill on wildlife crime. I believe that that bill will come to the Justice 2 Committee for consideration. I am not convinced of the need for a specific provision in the Land Reform (Scotland) Bill relating to the disturbance of wildlife. That view is shared by Scottish Natural Heritage and the issue will be addressed in the legislation on the nature of Scotland.The proposed exclusion of camping raises the issue of enclosed land, which we discussed last week in relation to amendments lodged by Bill Aitken. SNH and the access forum recognised the difficulty of attempting to treat enclosed land differently from any other land. I do not want to go through all those arguments again, as they are all on record. The issues that amendments 98 and 98A seek to address are either being addressed elsewhere or are more appropriate to the code. I hope that Bill Aitken will agree not to move amendment 98. If that happens, amendment 98A, in the name of Dennis Canavan, will fall, which will be a good thing. Amendment 157 relates to amendments that we discussed earlier, which sought to remove the exclusion of cropland from access rights in section 6, leaving that to be dealt with in the code. We had a great debate on that last week, and I am happy to elaborate again on our thinking in that regard. As I explained at the time—and I think that it was accepted—it is an important issue for farmers. I am not convinced that the public should be free to exercise access rights over land on which crops have been sown or are growing. We discussed at some length exactly what the effects of section 6(h) would be, and I hope that I clarified the position on a number of areas, including tramlines, field margins, outrigs and endrigs, and even Mr Stevenson's potato field. I also explained the relevance of section 14 and the code in dealing with any potential abuse of that provision by landowners in an attempt to restrict access unreasonably. Section 14 gives us reserve powers to prevent crops from being sown with the express intent of restricting access. I also undertook—at your behest, convener—to introduce an amendment at stage 3 to address the concerns that have been expressed about grass grown for hay or silage. Although such grass is included in the bill and designated as a crop, I recognise that it is not so liable to damage resulting from access as wheat, barley or vegetables are. In fact, there is a potential problem only in the period shortly before the grass is to be cut, and I accept that that must be reflected in the bill. Amendment 148, which would have removed the exclusion of cropland from access rights in section 6(h), was, properly, not accepted when we discussed it last week. As a result, access rights are not exercisable over land on which crops have been sown or are growing. Therefore, the risk that someone who is exercising access rights will damage crops is small. I am not convinced that amendment 157 is necessary. As we discussed last week, the code will include guidance on the exercise of access rights in the vicinity of crops. I consider that to be sufficient. Any damage to a farmer's crop is unacceptable. If amendment 157 were accepted, it would give the wrong message, because the implication would be that damage that falls short of significant damage is acceptable in the exercise of access rights. That approach would be contrary to the ethos of the bill, to which we all subscribe. It would contradict the logic of Pauline McNeill's comments last week and I hope that she will not press amendment 157.I come to amendments 246 and 247. As members know, the bill provides for responsible access rights for recreation and passage. I submit that the rescue of one person by another is not something that is done for recreational purposes. In my considered opinion it has nothing to do with access rights or the reasonableness of access rights. That applies equally to all forms of rescue, except, I suspect, if they take place in the air. Amendments 246 and 247 are inappropriate and unnecessary. I invite members not to move the amendments.I understand the concerns that have been raised about the exercise of access rights by people with dogs, which are provided for currently. The code will have to address the issue of responsible conduct of dog owners. In addition, those exercising access rights will have to comply with existing legislation that relates to dogs. The Dogs (Protection of Livestock) Act 1953 makes it a criminal offence to be in charge of a dog that is worrying livestock. There is also legislation that relates to fouling by dogs. The bill excludes from access rights people with dogs that are not under proper control. Although I understand the desire to define what that means, I am not convinced that amendment 79 helps. Being under proper control might, depending on the circumstances, go beyond what is laid down in the amendment and strict compliance with the terms of the amendment would in some circumstances still mean that the dog was not under control. Worrying and molesting livestock are already addressed in legislation. Provision is already made for guidance in the code. We think that it is preferable to address the issue in guidance, as guidance can explain the dos and don'ts more fully. The question of "proper control" would depend on the circumstances and statutory provision is unlikely to cover all the circumstances. I hope that Bill Aitken and Murdo Fraser will accept that the matter is best addressed in the code and that they will agree not to move amendment 79.I return to section 9(2). As I have said, I have considered the need for certain exclusions. Section 9(2)(c) raised concerns that people exercising access rights would not be able to pick berries—members will recall the discussion that we had about that. Picking berries could, in some circumstances, be considered theft, but in others it is perfectly acceptable. I see no reason why the responsible picking of berries should not be included in access rights, so amendment 77 will delete paragraph (c). I make it clear that hunting and shooting are excluded from access rights and amendment 76 will provide for that. Amendment 76 replaces the reference to the exclusion of angling from access rights with a wider and more appropriate reference to the exclusion of hunting, shooting and fishing, for the reasons that I mentioned. The amendment complies with the existing legislation and with our legislative intent for section 9.