Section 9 — Conduct excluded from access rights

Land Reform (Scotland) Bill: Stage 3 – in the Scottish Parliament at 9:31 am on 23 January 2003.

Alert me about debates like this

Photo of George Reid George Reid Scottish National Party 9:31, 23 January 2003

We resume with the debate on amendments in group 10. The Minister for Environment and Rural Development has moved the lead amendment in that group, amendment 81.

Photo of Roseanna Cunningham Roseanna Cunningham Scottish National Party

I will try to be as brief as possible. The minister has indicated his acceptance of amendment 83A. I thank him for that.

Amendment 85A has a similar intention and we do not see that there is a problem with it. I suggest to the minister that the taking away of fruit rather than the crossing of land would be outwith the right. My concern is that if people cross land in order to pick fruit for profit or to go mushrooming, where the activity does not take place on the land that is being crossed, those people will end up being challenged. As the minister will know, mushrooming is becoming a major activity in some parts of Scotland, so I urge him to consider accepting amendment 85A.

I am astonished by amendment 42. As a walker, I am concerned that agreement to amendment 42 would mean that I would be in trouble if I woke up a cow when I was walking. That is the import of the amendment. It is amazing that amendment 42 provides no definition of what it would mean to disturb any wild or farm animal. The biggest disturbance that a rabbit is likely to experience is terminal disturbance at the end of a farmer's shotgun. I am sure that being disturbed or frightened by a walker pales into insignificance in comparison with that prospect. I am not sure what the Tories are on about with amendment 42, which is a daft amendment.

I commend the SNP amendments to the Parliament.

Photo of Dennis Canavan Dennis Canavan Independent

Amendment 83B would delete the reference to fishing in Executive amendment 83. The common law on angling in Scotland is that fish in free-running water or in an open loch are not the property of anyone. When those fish are caught, they become the property of the person who catches them, irrespective of whether that person has permission to fish.

Of course, the common law is often overridden by statutory law. In particular, the Freshwater and Salmon Fisheries (Scotland) Act 1976 makes it a criminal offence to catch any freshwater fish without permission in waters that are covered by a protection order.

In unprotected waters, if the owner of the fishing rights wanted to take action against any person fishing without permission, the owner would have to seek a civil interdict in a court. If someone were to cross land or access water to commit a crime, or were in breach of interdict, such activity would already be excluded under section 9 of the bill as it stands. Therefore, the inclusion of fishing in amendment 83 is unnecessary because, as I said, appropriate action could be taken by the landowner or owner of the fishing rights under section 9 as it stands.

I submit that the Executive's amendment 83, which seeks to include angling in section 9, is not only unnecessary but undesirable, because it would deprive people of the statutory right of access to land or water in order to fish, even in circumstances where it would not be unlawful to fish.

Moreover, the Freshwater and Salmon Fisheries (Scotland) Act 1976 is under review; the minister referred to it yesterday. I hope that the act is repealed in its entirety and replaced with better legislation to allow more access for ordinary anglers. In the meantime, I do not think that there is a case for a specific reference to angling or fishing in the bill, which is a land reform bill rather than a bill to review the existing law on angling.

Photo of Bill Aitken Bill Aitken Conservative

Amendment 42 is a continuation of the old adage that one should not frighten the horses. It has to be recognised that the countryside is an area that is not only beautiful and used for recreational purposes, but from which a lot of people derive their living. We seek to protect that living with amendment 42.

Increasingly, flying mechanised toy planes and other aerial devices is becoming a sport and provides recreation for many people. Such devices could cause considerable unrest and disturbance to nesting birds and present a conservation question that needs to be addressed. It must be recognised, for example, that there have been cases of pregnant ewes aborting as a result of disturbance by mechanised biplanes. In our dual-purpose amendment, we seek to protect wildlife and to ensure that farm animals are not disturbed to the extent that there is any danger to their health or well-being or difficulty with regard to business.

Photo of Stewart Stevenson Stewart Stevenson Scottish National Party

Does the member recognise that the point about aviation is covered by the relevant air navigation order that prohibits aircraft coming within 500ft of any animal?

Photo of Bill Aitken Bill Aitken Conservative

Mr Stevenson has great experience of aviation, as he has of many other matters, but I point out to him that the aviation legislation applies only to piloted aircraft, so his intervention is not apposite.

I have no further points to make.

Photo of George Reid George Reid Scottish National Party

As the knife falls on this section at 9.44, I ask members to keep their remarks tight.

Photo of Rhona Brankin Rhona Brankin Labour

I rise to welcome the changes the minister has brought about to ensure that people with physical disabilities will be able to use motorised vehicles for access. It is vital that, no matter what a person's ability, they have a right of access to the countryside. For many people, that means their right can be exercised only by using an electric or motorised buggy.

Photo of Fergus Ewing Fergus Ewing Scottish National Party

Will the minister explain how the phrase "under proper control" will be defined? We all accept that it is absolutely essential that dogs be kept under proper control. That could mean keeping a dog on a lead, but might it also mean a dog that is properly trained to respond to its owner?

Will the minister also explain how, in the absence of an explicit provision, there will be adequate protection against farm animals—particularly sheep and lambs—becoming mismothered, and cows possibly contracting hypomagnesaemia?

Amendment 42 says that no one may be on any land where there is a possibility of disturbing wild animals. I suggest to Mr Aitken that the amendment seems to be a back-door, Tory attempt to ban fox hunting. If anyone goes on any land anywhere, they are likely to disturb deer, for example. Amendment 42 would effectively ban access to all Scotland's land. It is an absurd and preposterous amendment.

Photo of George Lyon George Lyon Liberal Democrat

I support amendment 84 in Ross Finnie's name. It is important to ensure that those who take access to land make sure that their dogs are under their control and that anyone who does not have their dog under control is excluded from access to land.

Bill Aitken lodged an amendment similar to amendment 42 at stage 2. It is nothing more than a wrecking amendment. It would go against the principles of the bill, as it would mean that no one could take access to the countryside. It should be opposed.

Photo of Sylvia Jackson Sylvia Jackson Labour

I welcome amendment 84 because of the difficulties that uncontrolled dogs can cause to ground-nesting birds and young wildlife in general. The Scottish Gamekeepers Association has approached me to make that point. Human safety issues may also arise with cows and deer. I ask for an assurance that, in the code, the minister will consider dealing very firmly with how dogs should be controlled in areas where people are walking.

Photo of Mike Rumbles Mike Rumbles Liberal Democrat

I understand the opposition to amendment 42 because it is drawn far too widely. However, I am concerned about the problem of access disrupting legitimate grouse-shooting activities. Will the minister confirm that the bill will not disrupt such activities and that access rights can be suspended for the duration of a shoot?

Photo of Ross Finnie Ross Finnie Liberal Democrat

I will deal with amendment 42 first. I do not believe it; it is nonsense. Other members have made the point about how inapplicable such a wide-ranging amendment would be. It is a wrecking amendment and I ask members to resist it.

Roseanna Cunningham raised an interesting, if narrow, point. I will have to repeat myself but we have defined what can be taken off land and have distinguished that people can go on to land for that purpose. We are saying that there are legitimate activities that involve crossing land in order to conduct an activity elsewhere. The danger presented by amendment 85A is that it would bring back the confusion that we have sought, through the bill, to clarify. People can be on land to get access to where they are going to be hunting, shooting or fishing, but they cannot carry out those activities on that land. Amendment 85A would leave confusion about that provision.

In relation to amendment 83B, in the name of Dennis Canavan, I made it clear that we believe that the Freshwater and Salmon Fisheries (Scotland) Act 1976 needs to be revised. That is the appropriate place for amendments such as that lodged by Dennis Canavan. I do not believe that the bill is the correct place to try to amend that legislation. The review of the 1976 act is underway and we expect to publish the results of that review shortly.

I cannot find the relevant sections to which I need to refer Mike Rumbles. I can be clear that there is no inhibition on the grouse moors but I will get back to him on that point.

Amendment 81 agreed to.

Amendment 82 moved—[Ross Finnie]—and agreed to.

Amendment 83 moved—[Ross Finnie].

Amendment 83A moved—[Roseanna Cunningham].

Members:

No.

Division number 1

For: Adam, Brian, Alexander, Ms Wendy, Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Brown, Robert, Butler, Bill, Campbell, Colin, Canavan, Dennis, Craigie, Cathie, Crawford, Bruce, Cunningham, Roseanna, Deacon, Susan, Eadie, Helen, Ewing, Fergus, Fabiani, Linda, Ferguson, Patricia, Finnie, Ross, Fitzpatrick, Brian, Gibson, Mr Kenneth, Gillon, Karen, Godman, Trish, Gorrie, Donald, Grahame, Christine, Grant, Rhoda, Hamilton, Mr Duncan, Henry, Hugh, Home Robertson, Mr John, Hughes, Janis, Hyslop, Fiona, Jackson, Dr Sylvia, Jackson, Gordon, Jamieson, Cathy, Jamieson, Margaret, Jenkins, Ian, Lamont, Johann, Livingstone, Marilyn, Lochhead, Richard, Lyon, George, MacAskill, Mr Kenny, Macdonald, Lewis, Macintosh, Mr Kenneth, MacKay, Angus, Maclean, Kate, Macmillan, Maureen, Martin, Paul, Marwick, Tricia, Matheson, Michael, McAllion, Mr John, McAveety, Mr Frank, McGugan, Irene, McLeod, Fiona, McMahon, Mr Michael, McNeil, Mr Duncan, McNeill, Pauline, McNulty, Des, Morgan, Alasdair, Morrison, Mr Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Munro, John Farquhar, Murray, Dr Elaine, Neil, Alex, Oldfather, Irene, Paterson, Mr Gil, Peacock, Peter, Peattie, Cathy, Radcliffe, Nora, Raffan, Mr Keith, Robson, Euan, Rumbles, Mr Mike, Russell, Michael, Scott, Tavish, Simpson, Dr Richard, Smith, Elaine, Smith, Iain, Smith, Mrs Margaret, Stephen, Nicol, Stevenson, Stewart, Stone, Mr Jamie, Swinney, Mr John, Thomson, Elaine, Ullrich, Kay, Watson, Mike, Welsh, Mr Andrew, White, Ms Sandra, Whitefield, Karen, Wilson, Allan
Against: Davidson, Mr David, Douglas-Hamilton, Lord James, Fergusson, Alex, Fraser, Murdo, Gallie, Phil, Harding, Mr Keith, Johnstone, Alex, McGrigor, Mr Jamie, McIntosh, Mrs Lyndsay, Mundell, David, Scanlon, Mary, Scott, John, Tosh, Mr Murray, Young, John

Photo of George Reid George Reid Scottish National Party

The result of the division is: For 88, Against 14, Abstentions 0.

Amendment 83A agreed to.

Amendment 83B moved-[Dennis Canavan].

Photo of George Reid George Reid Scottish National Party

The question is, that amendment 83B be agreed to. Are we agreed?

Members:

No.

Division number 2

For: Adam, Brian, Campbell, Colin, Canavan, Dennis, Crawford, Bruce, Cunningham, Roseanna, Ewing, Fergus, Fabiani, Linda, Gibson, Mr Kenneth, Grahame, Christine, Hamilton, Mr Duncan, Hyslop, Fiona, Lochhead, Richard, MacAskill, Mr Kenny, Marwick, Tricia, Matheson, Michael, McGugan, Irene, McLeod, Fiona, Morgan, Alasdair, Neil, Alex, Paterson, Mr Gil, Russell, Michael, Stevenson, Stewart, Swinney, Mr John, Ullrich, Kay, Welsh, Mr Andrew, White, Ms Sandra
Against: Alexander, Ms Wendy, Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Brown, Robert, Butler, Bill, Craigie, Cathie, Davidson, Mr David, Deacon, Susan, Douglas-Hamilton, Lord James, Eadie, Helen, Ferguson, Patricia, Fergusson, Alex, Finnie, Ross, Fitzpatrick, Brian, Fraser, Murdo, Gallie, Phil, Gillon, Karen, Godman, Trish, Gorrie, Donald, Grant, Rhoda, Harding, Mr Keith, Henry, Hugh, Home Robertson, Mr John, Hughes, Janis, Jackson, Dr Sylvia, Jackson, Gordon, Jamieson, Cathy, Jamieson, Margaret, Jenkins, Ian, Johnstone, Alex, Lamont, Johann, Livingstone, Marilyn, Lyon, George, Macdonald, Lewis, Macintosh, Mr Kenneth, MacKay, Angus, Maclean, Kate, Macmillan, Maureen, Martin, Paul, McAllion, Mr John, McAveety, Mr Frank, McCabe, Mr Tom, McGrigor, Mr Jamie, McIntosh, Mrs Lyndsay, McMahon, Mr Michael, McNeil, Mr Duncan, McNeill, Pauline, McNulty, Des, Morrison, Mr Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Mundell, David, Munro, John Farquhar, Murray, Dr Elaine, Oldfather, Irene, Peacock, Peter, Peattie, Cathy, Radcliffe, Nora, Raffan, Mr Keith, Robson, Euan, Rumbles, Mr Mike, Scanlon, Mary, Scott, John, Scott, Tavish, Simpson, Dr Richard, Smith, Elaine, Smith, Iain, Smith, Mrs Margaret, Stephen, Nicol, Stone, Mr Jamie, Thomson, Elaine, Tosh, Mr Murray, Watson, Mike, Whitefield, Karen, Wilson, Allan, Young, John

Photo of George Reid George Reid Scottish National Party

The result of the division is: For 26, Against 77, Abstentions 0.

Amendment 83B disagreed to.

Amendment 83, as amended, agreed to.

Amendment 84 moved—[Ross Finnie]—and agreed to.

Amendment 85 moved—[Ross Finnie].

Amendment 85A moved—[Roseanna Cunningham].

Photo of George Reid George Reid Scottish National Party

The question is, that amendment 85A be agreed to. Are we agreed?

Members:

No.

Division number 3

For: Adam, Brian, Campbell, Colin, Canavan, Dennis, Crawford, Bruce, Cunningham, Roseanna, Davidson, Mr David, Douglas-Hamilton, Lord James, Ewing, Fergus, Fabiani, Linda, Fergusson, Alex, Fraser, Murdo, Gallie, Phil, Gibson, Mr Kenneth, Grahame, Christine, Hamilton, Mr Duncan, Harding, Mr Keith, Hyslop, Fiona, Jamieson, Cathy, Johnstone, Alex, Lochhead, Richard, MacAskill, Mr Kenny, Marwick, Tricia, Matheson, Michael, McGrigor, Mr Jamie, McGugan, Irene, McIntosh, Mrs Lyndsay, McLeod, Fiona, Monteith, Mr Brian, Morgan, Alasdair, Mundell, David, Neil, Alex, Paterson, Mr Gil, Russell, Michael, Scanlon, Mary, Scott, John, Stevenson, Stewart, Swinney, Mr John, Tosh, Mr Murray, Ullrich, Kay, Welsh, Mr Andrew, White, Ms Sandra, Young, John
Against: Alexander, Ms Wendy, Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Brown, Robert, Butler, Bill, Craigie, Cathie, Deacon, Susan, Eadie, Helen, Ferguson, Patricia, Finnie, Ross, Fitzpatrick, Brian, Gillon, Karen, Godman, Trish, Gorrie, Donald, Grant, Rhoda, Henry, Hugh, Home Robertson, Mr John, Hughes, Janis, Jackson, Dr Sylvia, Jackson, Gordon, Jamieson, Margaret, Jenkins, Ian, Lamont, Johann, Livingstone, Marilyn, Lyon, George, Macdonald, Lewis, Macintosh, Mr Kenneth, MacKay, Angus, Maclean, Kate, Macmillan, Maureen, Martin, Paul, McAllion, Mr John, McAveety, Mr Frank, McCabe, Mr Tom, McMahon, Mr Michael, McNeil, Mr Duncan, McNeill, Pauline, McNulty, Des, Morrison, Mr Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Munro, John Farquhar, Murray, Dr Elaine, Oldfather, Irene, Peacock, Peter, Peattie, Cathy, Radcliffe, Nora, Raffan, Mr Keith, Robson, Euan, Rumbles, Mr Mike, Scott, Tavish, Simpson, Dr Richard, Smith, Elaine, Smith, Iain, Smith, Mrs Margaret, Stephen, Nicol, Stone, Mr Jamie, Thomson, Elaine, Watson, Mike, Whitefield, Karen, Wilson, Allan

Photo of George Reid George Reid Scottish National Party

The result of the division is: For 42, Against 60, Abstentions 0.

Amendment 85A disagreed to.

Photo of George Reid George Reid Scottish National Party

The question is, that amendment 85 be agreed to. Are we agreed?

Members:

No.

Division number 4

For: Alexander, Ms Wendy, Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Brown, Robert, Butler, Bill, Craigie, Cathie, Davidson, Mr David, Deacon, Susan, Douglas-Hamilton, Lord James, Eadie, Helen, Ferguson, Patricia, Fergusson, Alex, Finnie, Ross, Fitzpatrick, Brian, Fraser, Murdo, Gallie, Phil, Gillon, Karen, Godman, Trish, Gorrie, Donald, Grant, Rhoda, Harding, Mr Keith, Henry, Hugh, Home Robertson, Mr John, Hughes, Janis, Jackson, Dr Sylvia, Jackson, Gordon, Jamieson, Cathy, Jamieson, Margaret, Johnstone, Alex, Lamont, Johann, Livingstone, Marilyn, Lyon, George, Macdonald, Lewis, Macintosh, Mr Kenneth, MacKay, Angus, Maclean, Kate, Macmillan, Maureen, Martin, Paul, McAllion, Mr John, McAveety, Mr Frank, McCabe, Mr Tom, McGrigor, Mr Jamie, McIntosh, Mrs Lyndsay, McMahon, Mr Michael, McNeil, Mr Duncan, McNeill, Pauline, McNulty, Des, Monteith, Mr Brian, Morrison, Mr Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Mundell, David, Munro, John Farquhar, Murray, Dr Elaine, Oldfather, Irene, Peacock, Peter, Peattie, Cathy, Radcliffe, Nora, Raffan, Mr Keith, Robson, Euan, Rumbles, Mr Mike, Scanlon, Mary, Scott, John, Scott, Tavish, Simpson, Dr Richard, Smith, Elaine, Smith, Iain, Smith, Mrs Margaret, Stephen, Nicol, Stone, Mr Jamie, Thomson, Elaine, Tosh, Mr Murray, Watson, Mike, Whitefield, Karen, Wilson, Allan, Young, John
Against: Adam, Brian, Campbell, Colin, Canavan, Dennis, Crawford, Bruce, Cunningham, Roseanna, Ewing, Fergus, Fabiani, Linda, Gibson, Mr Kenneth, Grahame, Christine, Hamilton, Mr Duncan, Hyslop, Fiona, Jenkins, Ian, Lochhead, Richard, MacAskill, Mr Kenny, Marwick, Tricia, Matheson, Michael, McGugan, Irene, McLeod, Fiona, Morgan, Alasdair, Neil, Alex, Paterson, Mr Gil, Russell, Michael, Stevenson, Stewart, Swinney, Mr John, Ullrich, Kay, Welsh, Mr Andrew, White, Ms Sandra

Photo of George Reid George Reid Scottish National Party

The result of the division is: For 77, Against 27, Abstentions 0.

Amendment 85 agreed to.

Amendment 86 moved—[Ross Finnie]—and agreed to.

Amendment 42 moved—[Bill Aitken].

Photo of George Reid George Reid Scottish National Party

The question is, that amendment 42 be agreed to. Are we agreed?

Members:

No.

Division number 5

For: Davidson, Mr David, Douglas-Hamilton, Lord James, Fergusson, Alex, Fraser, Murdo, Gallie, Phil, Harding, Mr Keith, Johnstone, Alex, McGrigor, Mr Jamie, McIntosh, Mrs Lyndsay, Monteith, Mr Brian, Mundell, David, Scanlon, Mary, Scott, John, Tosh, Mr Murray, Young, John
Against: Adam, Brian, Alexander, Ms Wendy, Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Brown, Robert, Butler, Bill, Campbell, Colin, Canavan, Dennis, Craigie, Cathie, Crawford, Bruce, Cunningham, Roseanna, Deacon, Susan, Eadie, Helen, Ewing, Fergus, Fabiani, Linda, Ferguson, Patricia, Finnie, Ross, Fitzpatrick, Brian, Gibson, Mr Kenneth, Gillon, Karen, Godman, Trish, Gorrie, Donald, Grahame, Christine, Grant, Rhoda, Hamilton, Mr Duncan, Henry, Hugh, Home Robertson, Mr John, Hughes, Janis, Hyslop, Fiona, Jackson, Dr Sylvia, Jackson, Gordon, Jamieson, Cathy, Jamieson, Margaret, Jenkins, Ian, Lamont, Johann, Livingstone, Marilyn, Lochhead, Richard, Lyon, George, MacAskill, Mr Kenny, Macdonald, Lewis, Macintosh, Mr Kenneth, MacKay, Angus, Maclean, Kate, Macmillan, Maureen, Martin, Paul, Marwick, Tricia, Matheson, Michael, McAllion, Mr John, McAveety, Mr Frank, McCabe, Mr Tom, McGugan, Irene, McLeod, Fiona, McMahon, Mr Michael, McNeil, Mr Duncan, McNeill, Pauline, McNulty, Des, Morgan, Alasdair, Morrison, Mr Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Munro, John Farquhar, Murray, Dr Elaine, Neil, Alex, Oldfather, Irene, Paterson, Mr Gil, Peacock, Peter, Peattie, Cathy, Radcliffe, Nora, Raffan, Mr Keith, Robson, Euan, Rumbles, Mr Mike, Russell, Michael, Scott, Tavish, Simpson, Dr Richard, Smith, Elaine, Smith, Iain, Smith, Mrs Margaret, Stephen, Nicol, Stevenson, Stewart, Stone, Mr Jamie, Swinney, Mr John, Thomson, Elaine, Ullrich, Kay, Watson, Mike, Welsh, Mr Andrew, White, Ms Sandra, Whitefield, Karen, Wilson, Allan, Wilson, Andrew

Photo of George Reid George Reid Scottish National Party

The result of the division is: For 15, Against 90, Abstentions 0.

Amendment 42 disagreed to.