Hansard

I hope that members will bear with me because I suspect that this will take some time. Section 15(1)(a) permits local authorities to take steps"to warn the public of and protect the public from danger on any land in respect of which access rights are exercisable".For the avoidance of doubt, the bill makes it clear that those steps include the putting in and maintaining of fences and notices. Amendment 263, which has just been moved, seeks to remove that clarification. In my view, which I hope the committee will share, the clarification is helpful and should be retained. I am not convinced that anything would be gained by deleting it and I hope that Sylvia Jackson will agree.Amendment 264 would remove a local authority's power to"indicate or enclose recommended routes or established footpaths".That power would be replaced with a power to"improve and keep fit for purpose recommended routes or established paths".As I said earlier, section 15(1) is about safety, protection, guidance and assistance. Amendment 264 is about the improvement and maintenance of paths and in my view it does not sit at all comfortably in section 15(1). The bill addresses the maintenance of core paths and I am not convinced of the need to make provision for local authority maintenance of other routes. If a route is of sufficient importance to be maintained by a local authority, it should be a core path. I hope that Sylvia Jackson will seek to withdraw amendment 263 and that she will not move amendment 264.Stewart Stevenson's amendment 237, as drafted, is very wide. It would allow a local authority to take appropriate steps"to maintain or divert any path or route".The power would therefore apply to all paths and all routes in respect of which access rights are exercisable, and not just to core paths. In effect, it would allow a local authority to maintain or divert paths—such as stalkers' paths, farm tracks and forest tracks—that have been created by landowners for their own purposes, without the local authority being required to consult the owners or anyone else. In my view, such a wide power would be not only inappropriate, but unnecessary. The bill addresses the maintenance of core paths.The question of who is responsible for maintaining the core paths mentioned in section 17(2)(a) and section 17(2)(b) will already have been decided. On rights of way on paths established by other legislation, the question of maintenance would be determined by that legislation.Core paths that are created by the bill will be delineated either by agreement with the landowner, or by order. We have discussed that. The bill requires that, when a core path is delineated by order, the local authority maintains it. When a path is delineated by agreement, maintenance will form part of the agreement with the landowner. I am therefore not convinced of the need to provide a power to ensure that local authorities maintain paths that do not merit core path status—certainly not such a wide power as amendment 237 would introduce, which would extend to all routes, paths and forest tracks.Procedures for the diversion of core paths are also set out in legislation. In all cases, such diversion requires full public consultation, which is entirely appropriate where such paths are in use by the public. I have already explained that I do not believe that local authorities should have the power to divert any path or route, especially without being required to consult. Amendment 237 does not require such consultation, even with the owner of the land. The second part of the amendment would allow local authorities to take appropriate steps to advise on or assist with the management of the land that formed any path or route. We have lodged amendment 197, which seeks to amend section 23, to clarify the role of rangers. That amendment will contain a duty on rangers to advise and assist the owner of the land and other members of the public on any matter relating to the exercise of access rights on the land. Local access forums will also offer assistance in such matters. Cumulatively, that seems to be a better approach. With those assurances, I hope that Stewart Stevenson will not move amendment 237.Amendments 238, 45, 61, 62 and 126 all seek to amend section 15(2), which provides a power to local authorities to require a landowner to act to remove the risk of injury to the public that is posed by "a fence, wall or other erection".We have just discussed that in detail. Amendment 238 seeks to clarify the fact that a gate would be covered by the phrase "other erection". Similarly, amendment 265 seeks to clarify whether gates and stiles would be covered by that provision. I hope that the committee will be reassured that a gate or stile that is "so constructed or adapted … as to be likely to injure a person exercising access rights"would be caught by section 15(2) and that, therefore, those amendments are unnecessary. It would not be helpful to list in the bill examples of possible other erections. I suspect that, contrary to members' intentions, that would limit the scope of the provision. I hope that Stewart Stevenson and Sylvia Jackson will therefore agree not to move their amendments, with the assurance that gates and stiles are covered by the phrase "other erection".Amendment 45 does not explain how a hedge or line of trees would be likely to injure someone who was exercising access rights. Phil Gallie may be seeking a power to allow local authorities to require the removal of trees that have been planted to prevent or deter access. If so, I advise him that we have already made provision for such action in the catch-all provisions that we have just discussed and agreed in section 14. If that is not what amendment 45 intends, I will be pleased to learn what is intended.Dennis Canavan's amendment 61 would require local authorities to issue a notice in all circumstances when they consider"that a fence, wall or other erection is so constructed or adapted … as to be likely to injure a person exercising access rights".I understand Dennis Canavan's thinking, but given my approach to local authorities, which differs from his, I think that local authorities should have the discretion to try other approaches to the reconciliation of such problems, when they think that appropriate. The written notice procedure should be only one option and local authorities should not be forced down that road in every circumstance. That raises a similar argument to that which we just had, when the committee agreed with me.We envisage a role for local access forums. When possible, I am keen to involve them in resolving problems such as those that Dennis Canavan expects. The power in section 15(2) is important. I hope that Dennis Canavan will agree that local authorities should have the discretion to deal with situations in the ways that they consider most appropriate. As I said, we do not intend to move to dispute in every instance. Scope for conciliation and agreement should exist in such circumstances. Local authority discretion is important for that.The approach that Dennis Canavan's amendment 62 proposes is impractical. It would place the onus on the person who proposed to erect the fence to decide whether it was likely to injure someone who was exercising access rights, and if so, to apply to the local authority for permission. We suspect that, in most cases, few people would apply. No provision for appeal is made for someone who applies and is refused permission. The threat of being required to take steps to remove any risk of injury is sufficient to avoid problems, without introducing the unnecessary bureaucracy of prior approval. Most applicants would probably ignore the proposed system anyway.Bill Aitken's amendment 126 is unnecessary. Section 15(2) allows local authorities by written notice to require a landowner to take only"such reasonable action as is so specified … to remove the risk of injury"posed to the public by any fence, wall or other erection that a landowner constructs. We discussed that comparatively recently. Therefore, the provision already prohibits a local authority from requiring unreasonable action.Section 14(4) and section 14(5) apply to any notice that is served, so a landowner can appeal on the ground of the reasonableness of the contents of a notice. Bill Aitken's amendment would limit a local authority's power to requiring only such remedial action as would not"interfere unnecessarily with the ability of the owner to carry on established practices of land management."If the required action interfered unnecessarily with the landowner's ability to carry on established land management practices, it would be unreasonable. Therefore, the protection that the amendment would confer—which I support—is already provided by the bill.In the light of what I have said, I hope that Phil Gallie, Dennis Canavan and Bill Aitken will not move their amendments.Section 15(4) enables a local authority to install, on any land in respect of which access rights are exercisable, gates, stiles or other means of facilitating the exercise of those rights; and seats, lavatories—which have been mentioned—and other means of contributing to the comfort and convenience of persons exercising the rights. I submit that, where a local authority installs such facilities, it should follow that it also maintains them. Amendment 194 provides for that. I trust that the committee will agree that it is a suitable provision.Amendment 266 seeks to amend section 15(4). The bill provides a power to local authorities to install gates, stiles or other means of facilitating the exercise of access rights. Amendment 266 would limit local authorities to the installation of gates, stiles, notices, fences or bridges. The power is a matter of local authority discretion. I see no need to constrain local authorities in the way that amendment 266 suggests. I trust that local authorities will exercise the powers responsibly and with due regard to the natural environment and to conserving our natural and cultural heritage. I ask that that be supported. Amendment 266 would also provide a power to carry out drainage, surfacing and other similar works, and to carry out maintenance work on any land in respect of which access rights are exercisable. Critically, such work would not require the consent of the owner. I have several reservations about that approach. I do not wish to encourage the view that local authorities will be responsible for all maintenance work on any access land, given that access land will be a fairly substantial proportion of the total land. That is unrealistic and would be likely to result in considerable pressure on local authorities from landowners asking local authorities to carry out work that would otherwise fall to landowners. It is not reasonable to provide for a local authority to carry out surfacing work on land without the owner's permission. Apparently, there would be no right of appeal. That is clearly inequitable and, consequently, flawed. The bill provides appropriate powers to local authorities with the appropriate safeguards to back up the powers. The approach that amendment 266 outlines is a mixture of constraints on local authorities and an inequitable extension of their powers. I ask Sylvia Jackson not to move it or consequential amendment 274.Amendment 267, also in the name of Sylvia Jackson, appears to me to be very wide and open to interpretation. It is not clear what is intended by the "wild qualities of the land". Local authorities already have responsibilities in respect of landscape, and amendment 267 would not increase those. In practice, the amendment's very general terms would serve only to create uncertainty. I hope that Sylvia Jackson will agree not to move the amendment.I am sympathetic to the intention behind amendment 276. However, on reflection I do not consider that it goes far enough. Amendments 279 and 280 would enable local authorities to indicate, enclose or give directions to any land in respect of which access rights are exercisable, not just paths. I see no reason to limit that power to paths. As we have already discussed, people will exercise their rights of responsible access not simply on paths but on open countryside.Amendment 283 appears to seek to introduce an alternative process to the one that was provided in section 11—now no more—to allow local authorities to exclude land or conduct from access rights. If the amendment is proposed as a replacement for section 11, it strikes me as far from satisfactory from the point of view of the owners of the land, the local authority and, dare I say it, those who are seeking to exercise access rights.In addition, it appears to me that, perversely, amendment 283 gives rise to precisely the same concerns that Scott Barrie expressed about section 11 yesterday and in previous meetings. Arguably, it gives rise to such concerns more than section 11 did and I will expand on that. The amendment would allow a local authority to erect signs or to take other appropriate steps to advise the public about access rights, including advice on how, where and when access rights should not be exercised. It is not clear what the status of that advice would be or what would happen if, for example, someone ignored the advice.However, if the public has to conform to that advice, what is the difference between what amendment 283 proposes and what Scott Barrie argued yesterday that we proposed in section 11, which was exclusion from exercising the right of responsible access by any other name? Where advice would apply for a period of more than five days, amendment 283 would place a duty on local authorities to take reasonable steps to consult the owner of the land affected by the proposed advice as well as any other persons with an interest in those access rights. They would also have to invite objections and any representations arising therefrom.The decision whether to proceed to issue the advice would then be for the local authority to make. Unlike section 11 where, as you know, I proposed that there should be a requirement to seek the approval of ministers if the advice was to have effect for 30 days or longer, there is no such provision in amendment 283. If there were a dispute as a result of the erection of a sign, it would be open to the local authority to seek guidance from ministers as to how the dispute might be resolved, after providing them with copies of the consultation responses. Local authorities would be required to have regard to such guidance. That would allow anyone who had been consulted and who was opposed to the proposed advice to turn the simple erection of a sign into a dispute for ministers to resolve.The committee will have to consider what to do about the issue in the context of what it decided to do with section 11 yesterday. As I said, the approach adopted by the Executive in section 11 was the better approach because ministers would have been involved at the consultation stage before an order was made or, in this case, advice was issued. On previous occasions, Scott Barrie has said that one of the principal arguments against section 11 was that local authorities are under pressure from landowners to make orders to exclude their land from access rights. They might—unfairly, in his view—give in to that pressure and exclude large sections of land for long periods of time, albeit with the safeguards that we sought to introduce. I was not convinced of that, particularly because we had introduced the checks and balances on ministerial order.The procedure that amendment 283 proposes would be less onerous on a local authority. As I have explained, it would be subject to fewer checks. In my view, local authorities would come under greater pressure to erect advisory signs than they would have been to make an order under section 11. If we accept the argument that local authorities are going to come under pressure, they are liable to come under more pressure as a consequence of the demise of section 11 than would have been the case with the checks and balances that were in section 11. A local authority is now liable to find itself under more pressure than would have been the case previously.In conclusion, whereas the approach that we set out in section 11 was clear and unambiguous, the approach proposed by amendment 283 is likely to create unnecessary confusion as to whether or not land or conduct is excluded from access rights. What would be the status of a notice on the exercising of access rights on a particular piece of land? Could the advice be ignored? What would happen if it were? I assume that it could be ignored, because the right to enter land could not be suspended simply by erecting an advisory notice. Presumably, the approach is based on the presumption that anyone who ignored advice would not be acting responsibly, and thereby would find themselves outwith access rights. However, there is nothing to say that that would be true in all circumstances. It might be argued that in certain circumstances, ignoring the advice was not irresponsible.If amendment 283 were agreed to, we would be moving away from our original objective, which was to dispel the confusion that we hear exists and to create a right of responsible access that lays out where the public might reasonably go. A local authority would be required to consult on the proposed advice, but the decision whether to proceed would be for it alone. Ministers would be involved only if the local authority decided to go ahead and a dispute resulted. What would then happen? Would the advice be suspended until the dispute was resolved, or would it continue to apply?Amendment 306 provides that the test of the reasonableness of the advice could fall to be determined by a sheriff, but without criteria having been set against which to judge it. That could open up the scenario where different approaches were being taken and different judgments were being arrived at by different sheriffs throughout the country. Perversely, one of the arguments that was used against section 11 was that it would lead to different interpretations of access rights in different parts of the country, depending on the constituent local authority. Amendment 306 would open up the potential for different sheriffs to interpret differently the reasonableness or otherwise of an individual's actions in different parts of their sheriffdoms.The approach that amendment 283 proposes is problematic, to say the least. Amendment 283 assumes that there is a need to provide local authorities with powers to restrict the exercise of access rights over some land or to exclude certain conduct in some areas. I believe that section 11 outlined the appropriate approach to take, subject to consultation with local authorities, but the committee decided that the powers under section 11 were not required.If the committee is to be consistent and logical, it cannot agree to amendment 283, because it is poorly thought through and would serve only to create the confusion and uncertainty that the committee sought to dissolve by its decision to delete section 11. It is up to the committee, but in my view it would be acting inconsistently and illogically if it agreed to amendment 283, because that would lead to more inconsistency and create greater confusion without the safeguards, checks and balances that the Executive proposed with section 11.