Hansard

On several occasions during the past couple of weeks, I have referred to the importance of section 14 in securing the creation of the responsible right of access.Section 14 provides that landowners must not take certain actions"for the purpose or for the main purpose of preventing or deterring"the exercise of access rights. The provision is additional to the requirements of section 3, which provides that landowners should use or manage responsibly land over which access rights are exercised.Amendment 124, in the name of Bill Aitken, would replace the test of whether the action is considered to be for the purpose or main purpose of preventing or deterring the exercise of access rights with the test of whether the action contravenes any obligation in respect of responsible land management, as imposed by section 3. It may be argued that the amendment would widen the powers of local authorities, but in my view the test as currently drafted is appropriate.In determining whether section 14(1) has been breached, local authorities are required to consider the purpose of the action in question. I see no advantage in changing the test by referring back to the provisions of section 3. That would introduce a very general test that would be likely to result in considerable dispute. That might be the intention behind Mr Aitken's amendment, but no responsible legislator could contemplate making such a change. Section 14(1) as drafted provides a very clear power. I hope that Bill Aitken will seek to withdraw his amendment.Executive amendment 193 also seeks to widen the provision, but would retain the test of whether the landowner is acting with the purpose or main purpose of deterring the exercise of access rights. In a moment I will deal with the points that Sylvia Jackson and Murdo Fraser made. The effect of amendment 193 would be to prohibit an owner from taking, or failing to take, any action for the purpose or main purpose of preventing or deterring the exercise of access rights—not just the actions that are listed. It is appropriate that local authorities should have that catch-all power. I hope that the committee will agree this time. If amendment 193 is agreed to, that should address the concerns behind amendments 236, 91 and 282. The provision as it would be amended by amendment 193 would cover all the actions that are listed in the amendments, so it would not be necessary to mention those actions specifically on the face of the bill. I hope that Stewart Stevenson will agree not to move his amendments, the aims of which are encapsulated in our catch-all provision.The same arguments apply in respect of amendment 173. However, I have a number of other difficulties with the terms of that amendment. Each of the new paragraphs that the amendment would insert refers to"a path, track or other route".As members are aware, access rights are not restricted to particular routes, so to focus on such routes is wrong. The last new paragraph would extend curtilage. The curtilage of a building can be extended only for purposes connected with that building. It is not possible to extend curtilage for purposes that are unconnected with the building in question—for example, in order to prevent the exercise of access rights. For that reason, I resist the inclusion of amendment 173 in the bill, if only to provide an example of the type of actions that might be caught by section 14(1). The amendment is flawed, and I hope that Stewart Stevenson will agree not to move it. It would not have the effect that it is designed to have.Amendment 262 also seeks to widen the scope of section 14(1)—probably with good intent—by removing the purpose test. Sylvia Jackson's aim is to ensure that the exercise of access rights is not prevented by accident rather than design. As Murdo Fraser said, it is unfortunate that the amendment would instead prevent a landowner from carrying out the actions that are listed if those actions prevented or deterred the exercise of access rights, irrespective of whether that was his or her intention. Murdo Fraser mentioned a couple of possibilities in that respect. The power in the amendment would be so wide that it would in effect prevent owners from managing their land. I do not want to go back over the debate, but I argue that agreement to the amendment would mean that planting a field of crops would prevent the exercise of access rights over that land. Erecting a fence would be likely to prevent or at least deter the exercise of access rights and many people might be deterred from exercising access rights to fields in which there is livestock—a bull being the classic example. All those activities could be caught by the approach that amendment 262 proposes. I hope that Sylvia Jackson agrees that that would be nonsense—I am sure that that was not her intention—and that she will not move amendment 262.Amendment 125, in the name of Murdo Fraser, would—members will not be surprised to hear—have quite the opposite effect to the other amendments in the group. That amendment seeks to limit the actions in respect of which a local authority might act. I have explained why I consider that the power that local authorities will be given should be widened. That is our position and I hope that Murdo Fraser will accept the arguments that have been made, subject to the caveats that I outlined in relation to amendment 262, and that he will not move amendment 125.Amendment 275 appears to be aimed at providing a get-out clause to enable landowners to take actions for the purpose or main purpose of deterring any person from exercising access rights in a particular area, provided that an alternative, reasonable, signposted route is available. I am not sure that that was the intention. If the amendment were agreed to, it would leave it to landowners in the first instance to decide what comprises a "reasonable alternative route". My fear is that the term "reasonable alternative route" could be open to different interpretations and that some landowners could abuse it. For example, some landowners might block an access route and be content to argue for some time whether a reasonable alternative exists.More important, I do not think that amendment 275 is necessary. It would be difficult for a local authority to argue that where a path was blocked, but a suitable alternative existed, a landowner had acted for the purpose or main purpose of deterring the exercise of access rights. Consequently, there is no need for amendment 275; if it were agreed to it could result in another potential area of dispute. I do not think that it would achieve the purpose for which it was intended. For those reasons I ask Stewart Stevenson not to move amendment 275.Amendment 57 follows earlier amendments that Dennis Canavan lodged, and has the purpose of removing the exclusion of angling from access rights in section 9(2)(b), which has now disappeared. Amendment 57 seeks to ensure that landowners should not be able to put up signs for the purpose or main purpose of deterring angling without permission in an area that is not covered by a protection order under the Freshwater and Salmon Fisheries (Scotland) Act 1976. We discussed the matter to a certain extent yesterday in Dennis Canavan's absence and I listened to his summary of the debate. I suspect that I covered much of the same ground as Dennis Canavan did in relation to the issue.As I have explained, we acknowledge that there could be scope to improve access for fishing. I am now considering that and—as I assured Dennis Canavan, the committee and the Parliament—we will consult fully with all interests. We will in any event examine the consequences of removing section 9 from the bill. I ask members to agree to amendment 193, and I urge Bill Aitken, Stewart Stevenson, Murdo Fraser and Dennis Canavan to withdraw or not to move their amendments.