In December 2022, I published a post about the recent decision of the Inner House of the Court of Session in the Gartmore House case. This judicial review concerned a land owner’s unsuccessful attempt to resist the imposition by the relevant access authority of two new core paths on its land, all in terms of the Land Reform (Scotland) Act 2003.
My post was something of a raw precursor to some more developed thoughts on the case. That polished comment can now be found in the new issue of the SPEL journal – thanks as ever to John Watchman and the team there for their support with the publication process. An author-produced pre-print of the article can be found via the University of Strathclyde’s academic repository.
In other circumstances I might have left this current blog post as a simple signpost to the new article. Some readers might be happy to treat this post as just that, before I wander off on a bit of a tangent. Call that fair warning: feel free to stop reading now if you can’t be bothered with a slightly wordy rest of post, regarding the appropriate terminology to use when describing aspects of the 2003 Act.
The indirect spark for this tangent was Lord Carloway’s opinion in the Gartmore House case. In paragraph  of that opinion he noted that “the right to be on land for recreational, educational and non-commercial purposes, and the right to cross land [found in section 1 of the 2003 Act]… is known as the right to roam.” In paragraph , he noted that the system of core paths introduced by the 2003 Act was “in addition to the general right to roam”. His ease with using the term “right to roam” follows on from his adoption of that terminology in an earlier case on the 2003 Act that he also ruled on, as noted in my predecessor blog post.
The direct spark for this tangent is a “pingback” I received in early January in relation to that predecessor post. That is to say, I got a WordPress notification telling me someone else had linked to my output. Naturally intrigued, I clicked through to the linking blog post in question, by Nick Kempe on the Parkswatch Blog, entitled “Scotland has a right to roam not a ‘right of responsible access’“.
Here’s my first attempt to downplay what I am about to write. As an academic, or indeed as a blogger, you write stuff and people react to it. That comes with the terrain. In fact, you positively hope people engage with it. It might be that people nod silently in agreement, and such people are unlikely to write screeds of text agreeing with you. Others might take issue with what you’ve written, and sometimes they tell you that. When people react in a way that leads to further writing, that’s absolutely fine. This reaction caught me on the hop though, as I hadn’t really envisaged that I had a chink in my armour here; heck, I hadn’t even realised I had any need for armour, never mind that anyone was trying to find a way through my non-defences.
Anyway, this Parkswatch post’s purpose is to position for “right to roam” as the preferred terminology for the access rights introduced by the 2003 Act, in preference to the formulation “right of responsible access”. Kempe’s argument is fortified by Lord Carloway’s recent usage, a point I had already acknowledged in my earlier post.
More recently, what might be thought of as a follow-up to Kempe’s post by Mike Dales was published on Parkswatch, entitled “Access Rights and Terminology”. This current blog post was largely written before Dales’ post, but I have tried to incorporate some commentary here about what he has added to the debate. I should also sportingly note early in this post that the Parkswatch blog plays a valid role in the Scottish blogosphere, and good luck to the team there in their efforts to hold people to account in relation to a variety of important matters.
Enough pleasantries. I’ll return to Kempe’s post about Scotland having a right to roam not a “right of responsible access” now.
Does Scotland have a right of responsible access?
Here is a screen capture of the post which begins the discussion. Perhaps confusingly, me taking this screen capture leads to a screen capture of a screen capture:
Um… “grudgingly”? I had no idea I was grudging anyone anything when I drew attention to something in a case I was digesting that I thought was interesting. Anyway, I’ll try not to get too distracted by that. Also, in fairness to Kempe, he accepted a comment from me on his blog post where I pushed back on that (which you can click through to see for yourself), so I shouldn’t lay it on too thick.
In Kempe’s post, I am described as one of the proponents of the term “right of responsible access”, and that “authors like [me]” use clause [sic] 2 of the Land Reform (Scotland) Act 2003 to argue that point.
I’ll come back to who the proponents of this term might be later. On the substantive point though, Kempe proceeds to give the wording of section 2 a bit of a shakedown in relation to why people shouldn’t use section 2 in that way.
I am afraid I don’t buy the point made in his post that the framing of section 2 is such that saying “right of responsible access” is a misrepresentation because it somehow changes the emphasis. There might be arguments for preferring “right to roam” over “right over responsible access”, but the statutory language – lacking any punctuation – is absolutely that of a qualified right.
I’ll return to that qualified right point in a moment, but before I do I’ll try to fully cover off another aspect of Kempe’s objection to the use of “right of responsible access”, namely that it cuts out the word “exercise”, which appears in subsection (3). I see this as a complete non-argument: “exercise” is simply appearing as a verb in its transitive form. (I’ll revisit the word “exercise” towards the end of this post.) I also don’t fully buy into his argument relating to the heading of section 2 and it being somehow decisive here, given the chequered history of legislative headings and side notes in matters of statutory interpretation, but that’s a rabbit-hole I’m not going to dive down.
On the fact that the statutory rights to cross land and be on land are qualified, it is instructive to compare access rights under the 2003 Act with the right of passage that is conferred by a public right of way. A public right of way is a route recognised under Scots common law that afford access from one public place to another. No-one calls that entitlement a “right of responsible passage”, because it is not subject to the same “only if they are used responsibly” constraint as the 2003 Act’s access rights. Travellers on a public right of way, of course, must still comply with the law of the land, and cannot (for example) block other users or cause a private law nuisance, but it would be wordy and unnecessary to shunt “responsible” into “right of passage” for those extreme situations. Putting “responsible” into the shorthand for the 2003 Act’s access rights does not face the same critique.
Here’s where I can usefully bring in Dales’ blog post, where he – quite understandably – notes that there are constraints on conducting yourself in various situations where you have entitlements, and yet you don’t go around inserting the word “responsible” into all those contexts. I do understand that, and the argument carries an inherent attraction. I think my comparison between a right of passage remains a valid one though, because, bluntly, they are different – only one of them has a statutory qualification, and whilst some people might prefer to relegate that from any description it is not going to go away.
Let’s try another analogy. Suppose Angela and Bronwen are talking about that law-making venue at Holyrood. Angela calls it a legislature, and is equally happy to call it a parliament. She’s correct in her terminology. Bronwen, however, is conscious of the constitutional settlement that created the Scottish Parliament and calls it a devolved parliament. She is also correct. Angela might not like Bronwen drawing attention to that fact, perhaps for political or sentimental or whatever reasons, but she cannot wish it away. Deal with it: it’s a devolved parliament, and it’s not wrong to describe it as that for as long as the constitutional arrangement continues. This analogy stands for the right of responsible access.
I’m not criticising anyone or any statute here in relation to the “right to roam” terminology, I’m just being a private lawyer about it all. If others wish to put a different gloss on it, fill your boots, but that doesn’t make “right of responsible access” inherently wrong. For what its worth, I think the better argument for leaning towards “right to roam” is that the statute as a whole is about liberalising access to land, and in a question of pure statutory interpretation that is something a court could take into account.
Oh, and there I go: I’m so sceptical of “right to roam” there’s me giving a fresh argument for it. Returning to an earlier point though, am I proponent of “right of responsible access”?
Grudgingly, I suppose I should acknowledge that I am. There have been occasions where I find it a useful teaching device, plus I’ve explained above why I think it makes sense in property theory.
Here’s the thing though: I’m pretty much okay with both terms. The next bit of this blog post will be a bit of a trawl through historic terminology to demonstrate this.
Looking first at my own language, I see from my own blogging I added tags for both “right to roam” and “responsible access” to this WordPress blog in 2017, using them to tag a post about George Monbiot’s call to trespass in England. I used both right of responsible access and right to roam in this introduction to a case comment for ScotWays from 2018. I’ve checked other output and on balance it is fair to say I have tended towards “…responsible access” rather than “…roam”, but I do use both terms.
Meanwhile, I quite happily flagged that Lord Carloway had used the term “right to roam” in his two opinions, five years apart, to make it all the easier for people to notice that.
As such, I’m a bit confused as to why I was set up as an Aunt Sally figure; to switch to internet meme-mode, I’m basically David Mitchell dressed up in a Nazi uniform asking “Are we the baddies?”
As for my main published work on public access to land in Scotland, namely The ScotWays Guide to the Law of Access to Land in Scotland, in introducing what the statutory rights of access are there is no doubt that I err towards “right of responsible access” instead of “right to roam”. Section 2 of the 2003 Act is part of that. It can also be noted that the previous ScotWays Guide didn’t use “right to roam” at all (except in its index, which simply cross referred to “statutory access rights”). When I took on the project of reworking the ScotWays Guide, I wasn’t coining any terminology myself.
This did get me thinking about provenance though. I accordingly had a bit of a rummage into the historic usage of these phrases.
I turned to Google (yes, I know, and other search engines are available). The Scottish charity Paths for All mentions “right of responsible access” (and not “right to roam”) on its website section headed “What are your access rights?” The website of NatureScot (i.e. Scottish Natural Heritage) dedicated to outdoor access has a section on “Legislation history” which prefers “right of responsible access” (and hints at the “right to roam” terminology actually relating to the older tradition of access to hill ground). Further Google searching with restricted time parameters shows that Scottish Borders Council and Clackmannanshire Council were both using “right of responsible access” in February 2005, when I was such an influential proponent of the term that I was still an undergraduate law student. A 2007 publication from Angus Council refers to the right of responsible access (one year before my first publication on the topic, in the Edinburgh Law Review). Arch-nemesis of land reform Andy Wightman spoke of the “right of responsible access” rather than the “right to roam” in a 2013 blog post. I also had a look at the Official Report of the Scottish Parliament and I can see both terms being used in the Chamber, sometimes in the same debate.
In short, right of responsible access is not my term, and I’m not averse to using other terminology. As such, it feels a bit weird to be the only person named in Kempe’s post. Being the only person named in Kempe’s post forces me to address another point he makes, which I will turn to now.
The reciprocal responsibilities of landowners
Towards the end of his blog post, Kempe writes, “Those who refer to ‘the right of responsible access’ almost never refer to the reciprocal responsibilities of landowners.”
This is a bit of a strawman argument anyway, so it is barely worth a response. I’ve been suckered into replying to it though, as I’m a bit worried that as the only named individual in Kempe’s post (other than Lord Carloway) people will think this cheap shot applies to me. If this is indeed aimed at me, it’s bullshit. You can find an example of me never referring to the reciprocal responsibilities of landowners at pages 64 to 67 of the ScotWays Guide, or in the third substantive sentence of my aforementioned online case comment from 2018.
[I did mention above that I think Parkswatch is a valid part of the Scottish blogosphere. I still think it is. But if you’re going to have an unsubstantiated swipe out about something that might catch someone’s reputation in the crossfire, it would be good practice to give that someone a bit of notice about this, or ideally approach them for a comment.]
One related point might be worth thinking about though, and it is actually Dales’ later blog post that develops this. He highlights his fear that the term right of responsible access “suggests an expectation on the part of the people who continue using it that there is going to be widespread irresponsibility, and its deliberate use appears to be aimed at promoting the perception that it is only the recreational visitor that will be capable of being irresponsible.” For what it’s worth, that’s not what I am trying to promote, and I hope I have explained why in this post. I do understand the fear though. He then provides an example from his own experience, which I will quote in full.
The worst example I came across of this view that responsibility only applies to one party was at a meeting I attended when I worked for the Scottish Canoe Association. I was told in a very impolite way by an angling representative that “you only have a responsible right of access”, to which I replied that we had a right and that both sides were expected to act responsibly. I went on to say that a landowner or fisheries manager had responsibilities to be fair and accurate when, for example, they put up a sign to communicate a message to canoeists and that it would not be irresponsible for a canoeist to ignore an irresponsible sign. The guy was furious with me and was effectively arguing that if they put up a misleading and non-Code-compliant sign, then we had to obey the message anyway. I’m pleased to say that his outburst was in front of the entire meeting and his view was not backed up.
Meaning no disrespect to Dales here, this episode presents the sound of the system working. It might not always be like this though, and I must acknowledge that the system may have only worked here because the impolite angling representative was faced with a clued-up canoer. I confess I’m not 100% sure whether lopping “responsible” from the moniker would stave off any attempts at over-exuberant land management: that’s not a private law issue, and I’ll leave this to experts in human behaviour. I will however quickly consider a possible disadvantage to moving away from the responsible access terminology.
Welcome to the reductio ad absurdum bit of the blog post, where I ponder whether relegating the word “responsible” from any description will in fact lead to irresponsible access, by not foregrounding that access rights do indeed require to be exercised responsibly, and perhaps leading to folks strutting around with impunity when that impunity is misplaced, for whatever reason. I should declare at the outset that I don’t think it would, but again this is more a behavioural than a legal issue. It might also be noted that those who are vociferously pro- or anti-access are not going to bother themselves with such linguistic niceties (and indeed the same would be true in relation to the clash described immediately above). I think the point would need to be considered though when undertaking any renaming exercise (see below), lest there be any danger of throwing the baby out with the bathwater, and perhaps even losing goodwill by moving away from a term that is generally well understood.
I suppose the final point to note here is overall education as to the exact scope of access rights and the correlative duties of owners and occupiers of land is far more important than the term that is used to describe them. Lord Carloway or anyone else can use any sensible extra-statutory term they like, but in the event of a dispute it’s the actual terms of the statute and the accompanying Scottish Outdoor Access Code that will matter.
Will I be removing “right of responsible access” from my lexicon, as Kempe is seeking? No. As I’ve illustrated, it’s not my term to remove anyway. Meanwhile, I won’t be removing “right to roam” either. Both work. Both have pros and cons. Neither appears in the statute. Lord Carloway’s usage is clearly a feather in the cap of “right to roam”. Since the 2018 case I’ve been more relaxed about using it, and in any future edition of the ScotWays Guide I imagine I will adapt some of the wording to reflect this. In short though, I’m really not that bothered. I’m so not bothered I’ve just written thousands of words about it. Grudgingly.
Maybe this is about as important as one person putting a genre-spanning band in one genre, and another putting that band in a different genre. Actually, wait: in some circles that is pretty important…
To conclude, I’ll draw this back to what I have said in the most recent article for SPEL about the Gartmore House case, where I tried to capture the position in a paragraph.
[A] note on language, and the right terminology. From this judgment, it is apparent that Lord Carloway is a fan of describing the access rights introduced by the Land Reform (Scotland) Act 2003 as the trisyllabic ‘right to roam’ rather than the less catchy ‘right of responsible access’. The latter term might seem preferable given that it immediately captures the qualified nature of the entitlement (that is to say, a person has access rights only if they are exercised responsibly, in the words of s 2(1) of the 2003 Act). Be that as it may, the judge at the apex of the Scottish judicial system (UK Supreme Court justices excepted) is obviously content to use ‘right to roam’ – he did so in the case of Renyana Stahl Anstalt v Loch Lomond and the Trossachs National Park Authority ( CSIH 22; 2018 SC 406) and did so again here… ‘Right to roam’ was also used by Sheriff Reith to introduce access rights in her decision in Manson v Midlothian Council 2019 S.C.L.R. 723. The 2003 Act itself speaks of ‘access rights’ (s 1(2)). Neither ‘right to roam’ nor ‘roam’ actually appear in the statute itself. For completeness, it can be noted that while the concept of the responsible exercise of access rights permeates the 2003 Act (see, for instance, ss 2(3) and 12(1)), the formulation ‘right of responsible access’ does not appear in that Act either.
I’ll now return to Dales’ post, which I confess I am more sympathetic to [and I hope not just because when I read his post, in contrast to Kempe’s, I did not find myself wondering “when did I piss in his chips?”]. Dales angles for doing away with both terms. His proposed solution is to use the term “Scottish Access Rights”. In a general sense, I could get on-board with this, but I have a reservation. The main issue I have is there are other access rights that don’t flow from the 2003 Act, e.g. the common law ius spatiandi to be on the foreshore, or rights of public navigation on some waterways. Such a broad-brush term could lead to those rights being relegated from public consciousness. Unless and until such common law rights are brought into an overall regime by a future reform, this weighs against that term. This is also to say nothing about public rights of way, which again need to stand separate to 2003 Act access rights.
One other throwaway comment, on a slightly different point. At the end of Kempe’s post, there is some discussion about the use of the term “access taker”, linked to a separate post. I do have some sympathy with this, and this is something that was discussed as part of the production process for the ScotWays Guide. We struggled to settle on a snappy alternative formulation for that text. My own devilish preference is to call those enjoying 2003 Act rights “access rightsers”, but I suspect there is no way I’d get this by an editor. I’ll get away with saying that on this self-published blog though, and I’ll look forward to hearing what other options are put forward in place of “access takers”. The other option that springs to mind is “access exercisers”, and in fact that is most consistent with the terminology of the 2003 Act, but “exercisers” suffers from being clunkier than the less-than-neutral “takers”.
Let’s wrap this up. Perhaps we do need some new 2003 Act terminology, or maybe we should all just calm down. With that last point in mind, here’s what I hope will be my final word on the core topic of this blog post. Scotland does have a right of responsible access, even if some people argue other descriptors might be preferred. Anyone who argues Scotland does not have a right of responsible access is engaged in an exercise of contrived construction and/or spin.
“An inquiry into local authority duties to the homeless: Dafaalla v City of Edinburgh Council” – article for the Juridical Review
I have a Case and Comment piece in the new issue of the Juridical Review, the law journal of the Scottish universities, on a recent judicial review action relating to homelessness law.
On 5 July 2022, the Inner House of the Court of Session refused a reclaiming motion (i.e. an appeal) by City of Edinburgh Council, and approved an earlier Outer House decision to the effect that it had not fulfilled the statutory duties it owed to a homeless person (and his family). Here is a PDF of the opinion of Lady Dorrian for those who wish to go straight to the source.
The obligations of local authorities flow from the Housing (Scotland) Act 1987, the home of Scotland’s homelessness regime. In terms of that statute (as amended), there is a duty on all local authorities to investigate the circumstances of someone who applies to them for accommodation or assistance to obtain accommodation where they have reason to believe they are homeless or threatened with homelessness. Further, they must offer temporary accommodation and, if eligible, permanent accommodation to applicants.
In this case of Dafaalla v City of Edinburgh Council the applicant was seemingly eligible for accommodation, but had refused previous offers of permanent accommodation from the relevant local authority and had in fact been removed from temporary accommodation in January 2020. He then applied again at the start of the pandemic in March 2020, noting his medical conditions put him at increased risk of severe illness should he contract coronavirus and making his current arrangement where he and his family resided where they could from night to night untenable. The local authority did not entertain this fresh application, being of the view that its duties under the homelessness legislation were spent. As noted above, and as discussed in more detail in the article, the Outer House and then the Inner House of the Court of Session disagreed, ruling that the local authority remained bound by the statute and as such just because someone had refused accommodation in the past that did not mean they would never be able to get accommodation ever again in the future.
This was the first time the matter of what might be termed repeat applications came before a Scottish court. There has been some English case law though. Whilst there are some differences with the Scottish and English homelessness regimes – a point that led to some discussion in proceedings – the general similarity and shared history of homelessness law in Great Britain means English authorities can often be used in Scotland. The relevant English decisions developed a principle as to when an apparently new (further) application by someone for accommodation could be treated as “no application”. In the circumstances of a local authority receiving such a repeat application, the local authority can only be taken to be complying with its obligations under the homelessness legislation if that further application was based on the same facts as the one that preceded it. Applying that to the case at hand, Lady Dorrian was of the view the local authority here was wrong to not open up inquiries in relation to this particular repeat application.
The case has been welcomed in some quarters. Unsurprisingly, Shelter Scotland were amongst those putting the kettle on and declaring the case very welcome indeed, per this piece by Fiona McPhail in Scottish Legal News. That being said, there are some potential resourcing concerns for local authorities, particularly in relation to the provision of temporary accommodation whilst inquiries are being made. That duty will now unquestionably apply for a repeat applicant unless that person’s application is patently the same application as the one they made previously. Resourcing challenges aside though, there are wider policy and legal pushes towards adopting a sympathetic approach to the generally narrow category of those who genuinely do need to make repeat applications, including a backdrop of human rights instruments such as the right to “an adequate standard of living…including housing” (through the International Covenant on Economic, Social and Cultural Rights, Article 11).
All of this is discussed in the article which is available on Westlaw or in your local law library, with the citation Malcolm M Combe, “An Inquiry into Local Authority Duties to the Homeless: Dafaalla v City of Edinburgh Council” 2022 Jur. Rev. 167. I’m afraid it is subject to an embargo for the next year, at which point an open access version will appear on Strathclyde’s academic repository.
Finally, I’d like to think Peter Robson, Adrian Stalker and David Anderson for their comments on the article. This was my first dalliance with homelessness law for a publication and I am grateful to them all for their time.