“Accessible Access”. That is what a sign just off Edinburgh’s Chapel Street (near the University) states. I should have taken then posted a photo of said sign, I might even make a special pilgrimage to it one day. Being a self-confessed pedant, I wondered when access should be anything other than accessible. (Wondering about wandering is something the roaming property lawyer in me has a habit of doing.) Presumably the sign has the perfectly sensible and commendable aim of highlighting an access route for those who need some kind of assistance or self-propulsion (by way of a wheelchair) to move around without using language that has the potential to offend, so I will graciously allow its existence.
The wording did get me thinking though, the shameless sign deconstructor that I am. When is access not accessible? Perhaps ironically, it was a timely ponder. When the access is part of a core path under the Land Reform (Scotland) Act 2003 (“the 2003 Act”) and the relevant local authority for the area has suspended the core path provisions. “What?” I hear you cry. Well, that is exactly what the Scottish Government consulted on towards the end of last year and the response to that consultation was published on 26 September 2012. Surely this flies in the face of the liberal access regime introduced as part of the Scottish Parliament’s flagship land reform?
That liberal access regime is found in Part 1 of the Land Reform (Scotland) Act 2003. It begins by stating, “Everyone has the statutory rights established by this Part of this Act”. It then details what the right of responsible access entails, namely the right to be on land for recreational purposes, relevant educational activities and to carry out an activity that can be undertaken “otherwise than commercially or for profit”. There is also a stand-alone right to cross land. Section 2 qualifies section 1, by providing that access rights must be exercised responsibly. Guidance as to what is responsible is found in section 9, which lists seven conduct-based exceptions (such as crossing land whilst poaching). Section 6(1) excludes some land from the scope of access rights entirely, regardless of the conduct of a purported access taker. Access rights are incompatible with certain features on or of excluded land (such as a building and its curtilage or a reasonably sized garden next to a dwelling). It is worth noting that the statutory rights of access do nothing to change the pre-existing law, so rights of way that cut along the curtilage of a building continue to exist, irrespective of the legislative regime.
All in all, the act is indeed a liberating measure. It might even go so far as to allow camping in city parks (up to a point). But is it too liberating? That is what the Scottish Government were moved to consult on last year. Two provisions caught its attention. One was the inability of section 6 to prevent or restrict the exercise of access rights over any land which is a core path, because of a simple, clear exception in section 7(1) that the exclusion does not affect core paths. This brought knock-on effects for section 11, which is supposed to allow temporary suspensions but could not temporarily suspend core paths. To use the Scottish Government’s example, this could be a problem where a motor sport event required a section 11 closure for the management of public safety, but a core path got in the way.
The Rural Law Research Group at the University of Aberdeen (of which I form part) put in a response to this proposed new power of suspension. I am pleased to note that aspects of this have been picked up in the Scottish Government’s analysis. The key point I made was that no suspension of statutory rights can ever suspend a right of way and as such it might be useful to issue suitable guidance. Perhaps worryingly, it is clear that some respondents took the opportunity of the consultation to whinge about access rights in Scotland as a whole, including extra-statutory rights of way. If the Scottish Government were to “over-correct” and somehow suspend what existed before the 2003 Act, that would be careless (at best) or perverse (at worst). It would also seem to be incompetent in terms of an amendment under section 8 of the 2003 Act, which limits amendment by order to what land is excluded by the terms of sections 6 and 7 and says nothing of “non-statutory” access rights.
One other point related to the different treatment of “short” (less than six days) or “long” (six days or more) suspensions, the former of which seemed to provide for no need to even consider any alternative access arrangements (presumably owing to the short time period). Whilst that might not be such a retrograde step as doing away with rights of way, losing a core path for almost a week on whim is something that should ideally be avoided. I am glad the Scottish Government seems open to the idea of a need to consider such arrangements.
So what is next? I extract the Scottish Government’s response below.
The Scottish Government has noted the comments made by respondents, in particular the comments regarding the procedural provisions on alternative arrangements, the circumstances in which an order might be used and the need for accompanying guidance. In the light of these comments and having considered the matter further, the Scottish Government is planning to consult on a revised draft Modification Order accompanied by draft guidance issued under section 27 of the 2003 Act.
With regards to a number of comments made in relation to section 11, the Scottish Government notes the comments. However, the power in section 8 to amend the 2003 Act is limited to amending sections 6 and 7 and there is no power to amend section 11 of the 2003 Act.
In addition, an issue has been identified in relation to the temporary closure of core paths in the event of an outbreak of an animal disease such as foot and mouth disease. It is intended that this issue will also be addressed by the revised draft Modification Order.
As you can see, the whinges of some consultees also related to section 11, which again cannot be caught in this particular exercise.
So there is more consultation to follow. Jolly good. Meantime I shall continue to deconstruct (the words) of any signage as I exercise my unamended right of responsible of access across Scotland’s core paths and beyond.