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Mrs Kirsty Macleod's response to SNH draft Scottish Outdoor Access
Code consultation
Kirsty Macleod,
Letterfinlay, Spean Bridge, Inverness-shire,Scotland
(Filed 11 Oct 03)
www.land-care.org.uk
The Old Inn
Letterfinlay
Spean Bridge
Inverness-shire, PH34 4DZ
8th July, 2003
Mrs Bridget Dales
Scottish Natural Heritage
Battleby
Redgorton
Perth PH1 3EW
Dear Ms Dales,
SCOTTISH OUTDOOR ACCESS CODE
I would like to submit a late entry to the
above consultation and hope this can still be accepted. I haven’t
read the hefty SNH document from cover to cover due to lack of time
and inclination. I suspect, having glanced at it, that it is very
much in the mould of most SNH documents – fundamentally out
of touch with reality.
Rather than comment on its detail, I would
like to list my own main concerns and questions and you can judge
better whether they are addressed and answered by the proposals.
1. How will an access code be adequately
policed, in a way that is fair to both access taker and landuser?
2. How can Scotland afford nationalised
access?
3. What system will be put into place to
record instances of irresponsible behaviour that will occur to the
detriment of the landuser? i.e. in the absence of names, addresses,
descriptions, sightings of irresponsible behaviour, how will damage
be recorded? Lack of records lead everyone to believe that damage
is insignificant. It isn’t.
4. How will commercial access takers be
regulated? Will they have to have their own insurance? In the event
that a landuser wants to establish a commercial access business
on his or her own land, will this take precedence?
5. How will privacy for rural dwellers
be guaranteed?
6. Will SNH, local councils or the police
be available 24 hours per day, seven days per week (i.e. to include
weekends) to deal with requests for help?
7. What will be done about the mounting
rubbish in the countryside related to access activities?
8. Quote from “The Weekend Scotsman”
(12/4/03) - John Picken, access co-ordinator, Scottish Canoe Association
: “Having established that(responsible access), we can move
on and deal with long-term environmental issues surrounding rivers”.
Is there a statutory basis for allowing those who take access in
the countryside to also dictate management? If so, what is it? Does
this statutory right extend to non-British taxpayers and/or over
land/water areas which are NOT subsidised through the EU/UK?
9. Firearms – a gamekeeper who infringes
firearms regulations can lose his gun licence and his job. I attach
a recent article regarding theft of firearms from a rural address
by urban criminals. The leniency of their sentences is shocking.
What assurances are there that 24hr a day free access is NOT going
to spawn increased criminal activity like this?
10. Public liability – the Scottish
Executive must pay for this.
11. Have impacts on already-stretched rural
medical services been assessed, especially in popular hill walking
areas?
12. Jim Wallace, MSP, has stated that the
attitude shown by land managers at the time of the Foot and Mouth
crisis (i.e. in continuing to block access after SEERAD decreed
that land could be opened) had hardened the Scottish Executive’s
attitude towards granting any concessions to land managers over
access legislation.
I would like to point out that SEERAD was
guilty of issuing totally inadequate advice and instructions to
those of us who manage land on Scotland’s open hills.
I enclose copies of the first and only guidelines
we received weeks into the outbreak, on 16th March. (As far as I
recall, we received no advice at all about deer). They were printed
by MAFF and assumed that all farm movements could be contained at
one entry/exit point complete with disinfectant tub and signage.
Advice like “house all animals or keep them away from the perimeter
of your farm” was clearly a nonsense for Highland hills. But
no other advice was given until we were instructed to “open
up”. By the following week, the Government was telling the
public it was safe to go back to the countryside provided they stayed
away from livestock and obeyed “keep out” signs on farm
gates (Michael Meacher, Radio 4, 22/3/01). This inferred that open
hills were now totally safe.
Under these circumstances, it is hardly surprising
that hill farmers maintained foot and mouth warning signs, in the
fear that infection would be brought onto their ground without them
knowing by whom, when and where. For the Scottish Executive to treat
these very real fears as some kind of evidence of Victorian tendencies
to banish people from private land is an absolute disgrace. To this
day, we have not been told in the hills how to ensure that our open
land is NOT infected either by foot and mouth or any other disease
which the public might introduce. Nor have we been told how we are
to manage access on our mountainous land. I would welcome your views.
To conclude, matters would be less fraught if
this were simply a genuine exercise to establish an access/privacy
balance. Is it?
Yours sincerely,
Mrs Kirsty Macleod
Land-Care Editor Notes
Kirsty Macleod, acting as an individual, asks very pertinent
questions of SNH in relation to its draft Scottish Outdoor Access
Code. Having read the draft Code from cover to cover, Land-Care
would like to comment on them in turn:
1. There is no credible system of control of access takers proposed
in the Code. Access forums for whole districts are somewhat naively
(or disingenuously) proposed in the Code, but they will by necessity
be remote and have no legal powers. David Mellor, Secretary of
Police Chief Officers Association in Scotland, in his response
(no 367X) stated that "no enforcement against access takers
was possible". Land-Care would submit that it is in most
cases all too easy to identify and locate access providers.
2. Scotland cannot afford nationalised access. The Scottish Executive
has stated that some £38M will be allocated to implementing
the Access Code, but it will not be ring-fenced. This means that
the Scottish Executive is seen to be allocating funds for the
provision of access as defined in the Code, but the money will
largely go to District Councils (local government) who are under
no constraints to spend it on access if they feel that there are
more pressing demands - such as schools, care of the elderly,
roads, flooding, housing, child minders or whatever. As District
Councils claim to be short of funds and their ratepayers become
seriously disgruntled with the escalating Council Taxes, it is
more than likely the money initially earmarked for Access to the
Countryside will find its way elsewhere. The burden of access
will fall on the asset provider - the farmer/landowner.
3. Kirsty Macleod might well ask this question, but there is
no apparent answer - and SNH must know that to be the case.
4. The unequivocal provision within the draft Code for certain
types of commercial enterprises to take free access to the use
of a landowner's assets for their own commercial gain is a recurrent
and strongly expressed complaint in the responses to the Code
from what SNH categorises as land managers. The Code contains
no realistic way of controlling such commercial enterprises except
presumably through a remote Access Forum, which in turn has no
teeth.
Kirsty Macleod raises a good point when she asks what would happen
if the landowner wanted to establish such a commercial activity
on his own land in the face of someone else with no responsibilities
for the land having already done so. There are likely to be plenty
of commercial opportunists only too keen to take free advantage
of facilities that someone else is financially and managerially
responsible for.
5. The draft Code openly admits that it has not been able to
come up with an answer to this one, even after years of deliberation.
Ardent access takers have little respect for the privacy of those
who work in the country, while those urban dwellers who have second
homes in their rural idyl do not want others encroaching on their
privacy. Farmer/landowners who have invested heavily in the countryside
and who carry the financial responsibility for their patch, not
unreasonably feel that they should be entitled to some privacy
for their efforts.
6. Of course the authorities will not be promptly available 7/24.
It is seriously disingenuous of the SNH draft Code to suggest
that they will.
7. SNH has persistently claimed that the matter of rubbish being
left around the countryside is a matter that can be solved through
education, education, education. The only trouble is that over
the years SNH has not got round to doing any significant education
in this regard; and so the problem persists as bad, if not worse,
than ever. Promises that education will follow the introduction
of the Code is another example of serious disingenuous tactics
by SNH.
8. Kirsty Macleod makes another good point here. Indeed it appears
to be the policy to the Scottish Executive that land use is for
the access taker, rather than the producer of food. Indeed this
policy was clearly expressed in a recent conference organised
by the ECRR , and strongly rebuffed by Land-Care (1).
9. With regard to increased criminal activity in the countryside
on the back of what is proposed in the draft Code, SNH is again
seriously disingenuous. SNH dismisses crime as a social phenomenon
that is not within their brief (2, 3),
yet they are happy to facilitate it. A basic problem with regard
to SNH being charged by the Scottish Executive to come up with
an Access Code for Scotland is that SNH is essentially a monofocus
organisation, concentrating on conservation/biodiversity and largely
ignoring everything else that goes on in the real world.
10. The draft Code fails to deal competently with the matter
of liability. Again in disingenuous mode the Code simply refers
to the fact that the farmer/landowner needs to continue to observe
the normal duty of care. In so doing of course, SNH fail to recognise
that the purpose of the Code is to encourage access to the countryside
by the general public who are largely and increasingly ignorant
of country matters. Of course such a Code would increase the risk
of known hazards actually happening - and that is what insurance
companies are interested in. One is left with the uncomfortable
option of thinking that either the Access Forum who devised the
draft Code were ignorant of basic landmanagement facts, or they
are being incredibly disingenuous - spinning a story to try and
achieve their political objectives.
11. Fair point. In discussion with a rural GP recently, it transpired
that when on "after-hours" duty he looked after all
the people who were registered with GPs for the whole of Midlothian.
The draft Code advocates night-time access to virtually all land
- no matter whether it is agricultural or otherwise, in the hills
and mountains, or next urban settlements. Access takers are required
to be responsible for their own actions , but on the basis of
poor knowledge of rural matters their view of what is repsonsible
may not be realistic.
12. Kirsty Macleod has another good point here. It is often said
that it is easy to close down the countryside, but much more difficult
to open it up again in relation to an FMD outbreak. She is correct
in describing the chaos of instruction (or lack of it) emanating
from the Scottish Executive as FMD 2001 subsided. The answer is
to apply the scientific knowledge and techniques that are available
to test promptly and locally to determine where the disease is,
and to open or close the countryside on a basis that is logical
and easily understood by access takers and access providers alike.
It is understood that to this day Scotland (along with the rest
of the UK) is still awaiting the perfect test that is neither
necessary or indeed likely to be achieved. In clinical medicine
a great deal has been gained with tests that are very useful but
seldom perfect. Why not so in other fields? To spin their own
inadequacies into an accusation against farmers/landowners who
were understandably concerned about protecting their livestock
(and their own livelihoods) is yet another example of the disingenuous
nature of much of the SNH draft Access Code.
What people are looking for from government and its agencies
in 2003 onwards is trust. The disingenuous nature of much of the
content of the draft Code does not help to create a spirit of
trust.
References
1. Irvine, James (2003). The arrogance of academics
pontificating about rural affairs: are they letting us down? Review
of ECRR Conference: Scotland's Landscape - a fixed asset? Battleby,
Perthshire 8 May 2003,
See Social/Economic/Political HOMEPAGE, Filed 14 May 03, www.land-care.org.uk,
Click
here to view
2. Irvine, James (2001). Review of SNH Conference.
Enjoyment and understanding of the natural heritage: Finding the
new balance between rights and responsibilities.
LandCare Scotland. Vol 1: pp 25 - 31.
Reproduced with permission
See Scottish OutdoorAccess Code HOMEPAGE, Filed 22 January 03,
www.land-care.org.uk, Click
here to view
3. Irvine, James (2001). Scottish Natural Heritage's
policy on access: Is it being mis-sold in relation to enclosed
land next urban communities?
LandCare Scotland. Vol 1: pp 19 - 23.
Reproduced with permission
See Scottish OutdoorAccess Code HOMEPAGE, Filed 7 January 03,
www.land-care.org.uk, Click
here to view
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