Section 6 — Land over which access rights not exercisable

Land Reform (Scotland) Bill: Stage 3 – in the Scottish Parliament at 3:45 pm on 22nd January 2003.

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Photo of Ross Finnie Ross Finnie Liberal Democrat

The bill as introduced excluded from access rights land on which there is a structure. We argued at stage 2 that that was both reasonable and necessary. I do not believe that access rights should extend to such things as telecommunications masts, mobile phone masts, canal locks and the like. Nevertheless, that provision was removed from the bill at stage 2. At that time, we indicated that we would have to return to the issue at stage 3.

We have given careful consideration as to whether it would be realistic to attempt to list in the bill all the types of structure to be excluded from access rights. Our conclusion is that that would not be a sensible approach. The list would be long, and it is unlikely that we would catch everything that should be caught, not only now but in future.

I reconsidered the arguments for removing from the bill the exclusion of land on which there is a structure, and I am not persuaded. The bill already provides that access is not excluded to bridges, tunnels, causeways, fences or walls. I consider that to be the correct approach. To tackle the issue the other way round and include under access rights all structures other than those specified is the wrong approach. It is for that reason that I lodged amendment 68.

Amendment 180 would bring under access rights compounds or other enclosures around a structure. It is important that where, for example, a fence is erected round a telecommunications mast, for reasons of security, the land within that fence is excluded from access rights. Otherwise, the fence would serve no useful purpose. That would be a nonsense, and I hope that Stewart Stevenson will withdraw that amendment.

Amendment 179 would remove from the bill the provision that clarifies that bridges, tunnels and so on are not to be regarded as structures, and that access rights can therefore be exercised over them. It is clearly important that access rights can be exercised over bridges, through tunnels and so on. However, I accept that there could be a case for extending that list. Amendments 182 and 183 seek to do that by providing that access rights can be exercised on launching sites, groynes, weirs, boulder weirs, embankments of canalised waterways and on anything that is designed to facilitate passage. In other words, amendments 182 and 183 will expand the section that amendment 180 seeks to delete. Amendments 182 and 183 are consistent with the approach that I have outlined. I accept that the structures listed in them could be included under access rights. I am therefore content to accept Roseanna Cunningham's amendments 182 and 183.

I move amendment 68.

Photo of Lord David Steel Lord David Steel Presiding Officer, Scottish Parliament

I point out that, if amendment 179 is agreed to, I will not be able to call amendments 182 or 183.

Photo of Roseanna Cunningham Roseanna Cunningham Scottish National Party

It is always charming when a minister accepts one's amendments—but it always throws one right out with regard to what one was about to say. Nevertheless, I am happy—

Photo of Roseanna Cunningham Roseanna Cunningham Scottish National Party

In fairness to my colleague, he was the one who lodged an amendment to remove the word "structure" at stage 2. He has sought at this stage to remove other redundant instances of that word, in keeping with his stage 2 amendment—although the purpose was slightly different then.

As amendments 182 and 183 have been accepted by the minister, I think that I can save the chamber's time by coming to a close after that brief explanation of the situation in which Stewart Stevenson found himself.

Photo of Bill Aitken Bill Aitken Conservative

Having heard that explanation, I am prepared to go along with it. I was looking forward, however, to an explanation from Ms Cunningham as to the definition of "groyne", which I understand in fact relates to a device or structure to prevent soil erosion. I do not think that many people knew that.

Amendment 68 agreed to.

[Amendment 180 not moved.]

Photo of Bill Aitken Bill Aitken Conservative

Amendment 40 is straightforward. We are seeking—helpfully, we hope—to insert a provision into the act that will be in the public interest and will improve protection of children.

Unfortunately, facilities such as playgrounds that are provided for children occasionally attract people with a more sinister purpose. Amendment 40 seeks to protect children by denying the public access to an area that is being used predominantly by children for recreational pursuits. That protection is not available elsewhere in the bill. The amendment is practical, notwithstanding the explanation that the Deputy Minister for Environment and Rural Development gave in committee at stage 2. I look forward with interest to hearing the minister's views.

I move amendment 40.

Photo of Roseanna Cunningham Roseanna Cunningham Scottish National Party

Amendment 184 is a probing amendment. We are seeking to establish the Executive's true position in respect of tracks that run through farmyards. Many tracks—especially tracks up hills—start in farmyards. Under the bill as it stands, those tracks would be excluded from the right of access.

In response to an amendment in the name of Scott Barrie that sought to deal with this issue at stage 2, Allan Wilson stated that he wanted to nail down access to tracks that run through farmyards and that he was willing to discuss the matter further. However, the Executive has not lodged an amendment to deal with the problem.

Amendment 184 seeks to protect the existing right of access under common law, which we discussed separately, from change as a result of the establishment of statutory rights of access.

Farmyards provide very good routes—often the only route—into the countryside behind the curtilage. Members who are walkers know that to be the case. There is concern that continued access along such routes will be restricted in future if access rights do not apply to them. In its report, the Justice 2 Committee noted:

"there are many places where access to open land can only be gained through farmyards. This is particularly so in relation to access on horseback of bicycle. However, farmyards will fall within the definition of curtilage in section 6 and so not be included within access rights."

The committee indicated that the issue needed to be addressed.

Amendment 184 is a probing amendment. We are seeking assurances from the minister that the public should expect to be able to continue to take access through farmyards, as they do at present, rather than just on rights of way. Limiting access to rights of way would restrict hugely the access that is currently available in Scotland.

Photo of Scott Barrie Scott Barrie Labour

Amendment 40 must be opposed. It has been drawn so widely that any open space could be construed to fall within its scope. If the amendment is agreed to, the public will not be able to access such spaces.

Roseanna Cunningham has already alluded to the fact that at stage 2 I tried to explore the issue to which amendment 184 relates. We have found it incredibly difficult to reach a resolution of that issue. I am sure that in summing up the minister will agree with me.

Roseanna Cunningham highlighted the key points in this area. She was right to say that many routes for accessing hills start in farmyards. We must be assured that such access will not be restricted. The bill has always been about ensuring that the people of Scotland have nothing less in future than they have at the moment.

Roseanna Cunningham's points were well made in relation to the Justice 2 Committee's position in its stage 1 report and through its stage 2 consideration, during which amendments on the matter were contended and sometimes agreed to. I hope that the minister will be able to reiterate that after the passage of the bill, the people of Scotland will end up with nothing less than they have at the moment.

Photo of George Lyon George Lyon Liberal Democrat

I thank Roseanna Cunningham for raising the question of access through farmyards, because I believe that it is crucial and that it raises two important issues. One of those is health and safety, because a farmyard is an area in which machinery is operating and where there might be slurry pits or slatted passages. I do not think that it is appropriate that access rights should apply to farmyards. We also have to consider the privacy of the farmer and his family.

Photo of Pauline McNeill Pauline McNeill Labour

The Justice 2 Committee's position is not that there should be a general right of access through farmyards because, as George Lyon says correctly, there is a health and safety issue. Where there is no alternative route, we wanted the Executive to legislate to ensure that a route is provided; we did not want to create access to farmyards. That is the point that Roseanna Cunningham raised and I ask that it be addressed.

Photo of George Lyon George Lyon Liberal Democrat

I was going to come on to that.

The issue is how access is gained through a farmyard. Access rights would allow people to walk round the farmyard to take access through the fields on either side. It would give people absolute access to any other way of getting round the farmyard. I do not think that it is necessary for access rights to apply to farmyards.

I would like the minister to comment on the Executive definition of curtilage, which I asked him about at question time last week. There has been much discussion of that in the press and a number of concerned people have asked me about the definition, how it applies to hotels and whether it applies to the ground surrounding hotels. I would like to hear from the minister what the Executive's position is and what the definition of curtilage is.

Photo of Lord David Steel Lord David Steel Presiding Officer, Scottish Parliament

I think that a later amendment deals with that, if I remember rightly. Does Lord James Douglas-Hamilton wish to speak?

Photo of Lord David Steel Lord David Steel Presiding Officer, Scottish Parliament

Your name appeared on my screen.

Does John Home Robertson wish to speak?

Photo of Allan Wilson Allan Wilson Labour

The bill provides for rights of responsible access to land for recreational purposes. I say to Bill Aitken that far from being helpful, amendment 40 would exclude all land used primarily by children for recreational purposes. The exclusion of the public from exercising access rights on land that adjoins a school and is used by the school, which the bill already provides for, is sufficient for the purposes that he outlines. We do not see the need to exclude all land used by children for recreational purposes. That could have the effect of excluding the public from exercising access rights from local parks, for example. I am sure that Bill Aitken would agree that far from being helpful, the proposition would be ludicrous. I therefore ask Bill Aitken to withdraw amendment 40.

Roseanna Cunningham and colleagues looked for assurances and she said helpfully that amendment 184 was a probing amendment. The amendment would provide that any existing right of access through farmyards is not deemed to relate to excluded land. I give the assurance that section 5(3) of the bill already provides that

"the existence or exercise of access rights does not diminish or displace any other rights ... of entry, way, passage or access."

I recognise, however, that there are concerns about access through farmyards, which George Lyon, among others, expressed. As Scott Barrie said, we have given this careful thought but, as I said at stage 2, farmers should obviously enjoy rights to privacy.

Photo of Stewart Stevenson Stewart Stevenson Scottish National Party

Is the minister confirming that access through farmyards is available currently?

Photo of Allan Wilson Allan Wilson Labour

Where access through farmyards already exists, nothing in the bill will diminish or extinguish such a right of access. I have quoted section 5(3), the terms of which are self-explanatory.

However, I should add that the appropriate approach to ensuring that farmers have rights to privacy and that those who wish to take appropriate access have the right to do so is to provide guidance in the code. I accept that, in circumstances in which a farmer is unwilling to allow access through a steading on the grounds of privacy or health and safety, there should be a requirement to identify and mark an alternative route. That is a matter for the code. Amendment 90, which seeks to amend section 10, will widen the scope of the code to allow for that.

I have indicated that section 5(3) already provides that the

"existence or exercise of access rights does not diminish or displace any other rights" and that amendment 90 will make specific provision for widening the scope of the code to cover alternative routing round the steading. I hope that those two assurances will mean that Roseanna Cunningham will not move amendment 184, as it will not be necessary.

Amendment 40, by agreement, withdrawn.

Photo of Ross Finnie Ross Finnie Liberal Democrat

Section 6(1)(f) will exclude from access rights sports pitches and other land that has been developed or set out for recreational purposes, when such land is being used for those purposes. Amendments 69, 72 and 75 seek to restructure and expand that provision.

Amendment 75 sets down the main provisions. Its effect will be to exclude from access rights sports pitches and other areas that have been developed or set out for a particular recreational use, when they are in use. In such circumstances, the exercise of access rights would interfere with their use. Paragraph (b) of the subsection that amendment 75 would insert seeks to exclude golf greens, bowling greens and so on. It simply picks up the provisions that are set out in section 6(1)(fa). It would also exclude at all times the synthetic sports surfaces that are set out in paragraph (c) that would be inserted by amendment 75. That is necessary because sportscotland has advised us that such surfaces might be damaged by people wearing inappropriate footwear. Amendments 69, 72 and 76 are consequential on amendment 75. The proposed provisions are sensible and I hope that members will agree to the amendments.

Amendment 70 would extend the provision to exclude not only land that had been developed or set out for a particular recreational purpose while it was in use for that purpose, but land that had been developed or set out for a particular commercial purpose while it was in use for that purpose. That exclusion is potentially very wide and I see no need for it. The responsible exercise of access rights would not interfere with the sort of commercial activities that are envisaged by amendment 70. The matter could be better addressed through the code rather than in the bill. Therefore, I invite Bill Aitken not to move amendment 70.

I move amendment 69.

Photo of Bill Aitken Bill Aitken Conservative

The Executive amendments in the group are acceptable. The idea behind amendment 70 is to apply the restrictions to access where the recreational facility concerned is also a commercial facility.

It seems that the wording of section 6 could allow access through a professional football ground or a rugby stadium, for example. If the minister can demonstrate satisfactorily where else in the bill that issue is dealt with, I will listen carefully. If he cannot do so, I will have to press amendment 70.

As I have said, it is clear that the vast majority of people behave responsibly and take access in an eminently sensible manner. However, there are always those for whom we must legislate. Against that background, I shall wait and see what the minister has to say before I decide what action I will take.

Photo of Lord David Steel Lord David Steel Presiding Officer, Scottish Parliament 4:15 pm, 22nd January 2003

Three members want to speak to the amendments in the group. We are running a little tight for time.

Photo of Maureen Macmillan Maureen Macmillan Labour

I seek clarification from the minister on paragraph (a) that would be inserted by amendment 75, and which would prevent access rights if

"the exercise of those rights would interfere with the recreational use to which the land is being put".

The Highland Council is concerned that amendment 75 might create a loophole that would allow a grouse-moor owner, or possibly a deer-forest owner, to argue that the use of the land also includes management operations such as heather burning. Such owners could claim that the exercise of access rights at such times would interfere with the recreational use of the land. That would mean that landowners could exclude walkers for long periods.

Will the minister assure me that amendment 75 will in no way enable sporting estates to extend the legitimate exclusion that is enforced when shooting is taking place? Will he assure me that the amendment will not allow such estates to prevent access by walkers at other times of the year?

Photo of Alasdair Morgan Alasdair Morgan Scottish National Party

I seek the same kind of clarification that Maureen Macmillan asked for. Amendment 75 is reasonable and would improve the bill's drafting considerably, but I ask for an assurance that, in relation to land such as golf fairways and grouse moors, a commonsense meaning will be applied to the word "interfere".

Amendment 70, which I think is identical to an amendment that Murdo Fraser lodged at stage 2, is just the usual nonsense from the Conservative party. As the minister has said, the right of access to land is a right of responsible access. The bill does not provide a right to interfere with commercial activity. Were amendment 70 agreed to, it would open up the possibility that many people would unreasonably restrict access to land by claiming that the land was used for some commercial activity.

Photo of Sylvia Jackson Sylvia Jackson Labour

Having been approached by constituents of mine from Balquhidder, I ask for clarification of the interpretation of "recreational purpose" in section 6(1)(f)(ii), which would be amended by amendment 72. My constituents have purchased cottages, which they have advertised for rent as being quiet and secluded. Would those cottages be afforded suitable privacy, given that they have been advertised as being private? What would be the effect of the amendments in that case?

Photo of Ross Finnie Ross Finnie Liberal Democrat

In response to Bill Aitken's first point, section 6(1)(f) excludes sports grounds. No matter how one defines that, those are already included in the bill as being excluded from the general right of access.

On the question of grouse moors, I assure members that amendment 75 clarifies that section 6(1)(f) talks about access rights not being exercisable over land that has been "developed or set out" for recreational purposes. We are quite satisfied that grouse moors do not fall within the category of being "developed or set out" for recreational purposes. A grouse moor is, as Alasdair Morgan said, a grouse moor, so it would not be excluded from access rights by the provisions of amendment 75.

Photo of John Swinney John Swinney Scottish National Party

"A grouse moor is a grouse moor." That is helpful.

Photo of Ross Finnie Ross Finnie Liberal Democrat

I am glad to have Mr Swinney's support on that. I think that that deals with the points that were made by Maureen Macmillan and Bill Aitken. [ Interruption. ]

I apologise for almost forgetting Sylvia Jackson's point. The right to privacy has been addressed and the cottages that she mentioned would therefore fall within the provisions that give guidance on that right. I cannot give guarantees about what is advertised at any time, but there still exists a right to privacy.

Photo of Lord David Steel Lord David Steel Presiding Officer, Scottish Parliament

I think that a later amendment will deal with that issue.

Amendment 69 agreed to.

[Amendment 70 moved—[Bill Aitken].]

Photo of Lord David Steel Lord David Steel Presiding Officer, Scottish Parliament

The question is, that amendment 70 be agreed to. Are we agreed?

Members:

No.

Division number 7

For: Aitken, Bill, Davidson, Mr David, Douglas-Hamilton, Lord James, Fergusson, Alex, Fraser, Murdo, Gallie, Phil, Goldie, Miss Annabel, Harding, Mr Keith, Johnstone, Alex, McGrigor, Mr Jamie, McIntosh, Mrs Lyndsay, McLetchie, David, 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, Chisholm, Malcolm, Craigie, Cathie, Crawford, Bruce, Cunningham, Roseanna, Curran, Ms Margaret, Deacon, Susan, Eadie, Helen, Ewing, Fergus, Ewing, Mrs Margaret, Fabiani, Linda, Ferguson, Patricia, Finnie, Ross, Fitzpatrick, Brian, Gibson, Mr Kenneth, Gillon, Karen, Godman, Trish, Gorrie, Donald, Grahame, Christine, Grant, Rhoda, Gray, Iain, Hamilton, Mr Duncan, Harper, Robin, Henry, Hugh, Home Robertson, Mr John, Hughes, Janis, Hyslop, Fiona, Ingram, Mr Adam, Jackson, Dr Sylvia, Jackson, Gordon, Jamieson, Cathy, Jamieson, Margaret, Jenkins, Ian, Kerr, Mr Andy, Lamont, Johann, Livingstone, Marilyn, Lochhead, Richard, Lyon, George, MacAskill, Mr Kenny, Macdonald, Lewis, MacDonald, Ms Margo, Macintosh, Mr Kenneth, MacKay, Angus, Maclean, Kate, Macmillan, Maureen, Martin, Paul, Marwick, Tricia, Matheson, Michael, McAllion, Mr John, McAveety, Mr Frank, McCabe, Mr Tom, McConnell, Mr Jack, McGugan, Irene, McLeish, Henry, McLeod, Fiona, McMahon, Mr Michael, McNeil, Mr Duncan, McNeill, Pauline, McNulty, Des, Monteith, Mr Brian, Morgan, Alasdair, Morrison, Mr Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Murray, Dr Elaine, Neil, Alex, Oldfather, Irene, Paterson, Mr Gil, Peacock, Peter, Peattie, Cathy, Quinan, Mr Lloyd, Radcliffe, Nora, Raffan, Mr Keith, Reid, Mr George, Robison, Shona, Robson, Euan, Rumbles, Mr Mike, Russell, Michael, Scott, Tavish, Sheridan, Tommy, Simpson, Dr Richard, Smith, Elaine, Smith, Iain, Smith, Mrs Margaret, Stephen, Nicol, Stevenson, Stewart, Stone, Mr Jamie, Sturgeon, Nicola, Swinney, Mr John, Thomson, Elaine, Ullrich, Kay, Wallace, Mr Jim, Watson, Mike, Welsh, Mr Andrew, White, Ms Sandra, Whitefield, Karen, Wilson, Allan, Wilson, Andrew

Photo of Lord David Steel Lord David Steel Presiding Officer, Scottish Parliament

The result of the division is: For 17, Against 106, Abstentions 0.

Amendment 70 disagreed to.

[Amendment 72 moved—[Ross Finnie]—and agreed to.]

Photo of Rhona Brankin Rhona Brankin Labour

I will speak to amendments 168 and 169. The amendments are designed to ensure that no one—walker, cyclist or horse rider—is charged for access.

I understand that section 6(1)(g)(i) and 6(1)(g)(ii) were inserted in the bill to allow businesses such as safari parks to continue to charge for access but, unfortunately, those sections will allow certain landowners to charge horse riders for access, although they will not be able to charge cyclists or walkers. I believe very strongly that those provisions will effectively exclude a significant number of horse riders from the right of access.

I have two examples. The Duke of Buccleuch's Dalkeith country park in my constituency of Midlothian currently charges for access, as does Eglinton country park. I firmly believe that it is discriminatory to charge horse riders for access when walkers and cyclists are not charged. To do so will also displace horse riders onto the roads, with the risks that that involves.

Will the minister confirm whether the Forestry Commission is ceasing to charge horse riders for access? Will he say whether he believes that charging horse riders for access is within the spirit of the bill? I believe that it is not.

I move amendment 168.

Photo of Allan Wilson Allan Wilson Labour

Section 6(1)(g) excludes from access rights any land to which a member of the public has been "admitted only on payment" for the periods specified. Having reconsidered the provision after stage 2 we decided that, as drafted, the effect would be to exclude land even where only one class of user—for example horse riders—has been charged for entry. That is not our intention. Amendment 77 therefore seeks to amend the provision in such a way that a charge for entry on one class of user will not cause that land to be excluded from the exercise of access rights by other classes of user.

Photo of Lord David Steel Lord David Steel Presiding Officer, Scottish Parliament

Order. There is again a wee bit too much noise in the chamber. It is quite difficult to concentrate.

Photo of Allan Wilson Allan Wilson Labour

Amendments 168 and 169 would have the opposite effect to amendment 77. Their intention is to ensure that where only one class of user has been charged for entry in the past, the land should in future be open to the exercise of access rights by any class of users. That would run contrary to the principle and purpose of section 6(1)(g), which is that where income has been derived in the past from charging for entry, that should continue. It would be wrong to take away from an owner such a source of income, and could result in claims for compensation.

The same argument applies where the charge has been levied on only one class of user. I have sympathy with Rhona Brankin's point, but in the few cases in which the provision will apply, although it would be wrong to deprive an owner of a historical source of income, it would be within the spirit of the bill for owners to consider seriously their charging practises and policies. Forest Enterprise and the Forestry Commission have withdrawn charges for horse users who exercise on their property. I urge that course of action on others.

I ask Rhona Brankin to withdraw amendment 168 and to not move amendment 169 in favour of Executive amendment 77.

Photo of Rhona Brankin Rhona Brankin Labour

In view of what the minister said, and given the fact that I hope that we will continue to monitor the matter closely, I am prepared to withdraw amendment 168.

Amendment 168, by agreement, withdrawn.

[Amendment 169 not moved.]

Photo of Lord David Steel Lord David Steel Presiding Officer, Scottish Parliament

Amendment 41 is grouped with amendments 185, 78 and 79. The debate on the group has to end at 16:37. We have about 10 minutes.

Photo of Bill Aitken Bill Aitken Conservative

We are seeking to apply appropriate restrictions that will prevent those who seek access to land from interfering with the operation of a commercial farm. The wording that we have used is "enclosed farmland". By definition, that would not include fields, paths and places to which people would normally expect to have reasonable access. Enclosure of such land would have a dual purpose: it would protect the business of the individual farmer, and it would protect the health and safety of those seeking access. The countryside can be a lovely place but, equally, it can be a dangerous place. Sometimes it is ill advised, to say the least, to go onto enclosed farmland on which there are farm animals. Unfortunately, there have been many instances in which serious injury and death have resulted from members of the public mixing with farm animals. We seek to prevent that.

There is nothing in amendment 41 that would impinge on the rights of those who seek sensible access to farmland. The word that has to be stressed is "enclosed", which refers to places where there are fences of a type that is used to restrict animals from straying. Those animals would be potentially dangerous to people who walk nearby.

I move amendment 41.

Photo of Rhona Brankin Rhona Brankin Labour

Amendment 185 seeks to remove plantations of young trees from the list of growing crops over which access rights are not exercisable. I am pressing amendment 185 in response to the concerns of community forestry groups that plant and manage forests in different parts of Scotland and which, far from wanting to keep people away from young trees, want to encourage people in the community, especially children, to be involved in the management and development of community forests.

Photo of Ross Finnie Ross Finnie Liberal Democrat

It should be clear that the bill provides for responsible access to all land. That reflects Scottish Natural Heritage's advice in 1998 to the then Scottish Office that a statutory right of access to all land—open and enclosed—should be established. Amendment 41 would restrict access to large areas of the countryside in Scotland, which is not the intention of the bill. We wish to encourage more people to enjoy the countryside; the bill will, I hope, give them the confidence to do that. There is no reason why responsible access to agricultural land should create problems. Not everyone wants to bag Munros or Corbetts; many people want simply to enjoy the countryside around where they live. The bill will give them confidence that they can do so without fear of challenge.

Let me also say that I see the bill as an opportunity for farmers. We hear a great deal about the lack of public sympathy for farmers, but children and others want to know more about agriculture and agricultural habits and the way to teach them about it is to help the public into that field. I therefore urge Bill Aitken to seek to withdraw amendment 41.

We are happy to accept Rhona Brankin's amendment 185, which would delete section 7(7)(a) from the bill, which would mean that the bill would treat young saplings as a crop.

During stage 2, I listened to the arguments about the exercise of access rights over grass that was being grown for hay or silage. We accepted that there was not a problem with access during initial growth and that the crucial time was shortly before grass is cut. Amendment 78 deals with that issue and will provide that access rights can be exercised over grass that is grown for hay or silage, except when the grass

"is at such a late stage of growth that it is likely to be damaged".

Guidance on that will be included in the Scottish outdoor access code.

Amendment 79 also follows from stage 2 discussion and makes it clear that access rights can be exercised on all field margins, whether or not they are sown with crops, subject to the exercise of that right being responsible.

Photo of Alasdair Morgan Alasdair Morgan Scottish National Party 4:30 pm, 22nd January 2003

Amendment 41 refers to "enclosed farmland" and is similar to an amendment that was defeated at stage 2. It would exclude from the bill large areas of Scotland—certainly, of Dumfries and Galloway. In effect, it would drive a coach and horses through the bill. I hear my friend Stewart Stevenson saying that it would stop a coach. Amendment 41 would prevent many members of the public from walking anywhere near their houses, so we should reject it.

Amendment 185 is a good example of people getting together and agreeing on restrictions that can be removed from the bill, so we welcome it.

Amendment 78 deals with silage. It is unfortunate that such an amendment is needed because the bill is too detailed and does not leave enough for the access code. However, given the condition of the bill, we will support the amendment.

Amendment 79 deals with access to margins such as headrigs and endrigs. Current farming practice is to plant fields up to their edges, which means that the only way in which to obtain legitimate access under the bill would be to walk on crops that are growing in the margins. At stage 2, ministers assured members that people would continue to have the right to access margins. We welcome that and hope that it will encourage farmers to leave margins round crops. Apart from their being usable for access, such margins would be useful for environmental purposes.

Photo of Pauline McNeill Pauline McNeill Labour

I strongly support what Ross Finnie has said so far. The Executive has moved considerably in response to members' concerns about the provisions in the bill.

I am strongly against Bill Aitken's amendment 41. At stage 2, I attempted to remove section 6(1)(j), for the reasons that Alasdair Morgan outlined. The inclusion of crops that

"have been sown or are growing" might mean that people could not walk on the margins of a field. That has now been clarified and the Justice 2 Committee decided, on balance, to keep that provision. If Bill Aitken's amendment 41 were agreed to, the bill would refer to "enclosed farmland", which would mean that huge areas of Scotland were not open to access under the bill.

A crucial debate was held with ministers about responsible access to fields in which crops are growing. I emphasise the word "responsible", because responsibility is the crux of the matter. There is no reason why someone who takes access cannot walk through crops in a field, provided that they do so responsibly and do not damage those crops. Several concessions were made in that stage 2 debate on matters such as tramlines and field margins. Ministers even accepted that, provided that it was done responsibly, access could be taken between some crops, when it was clear that they would not be damaged.

I am pleased that the Executive accepts Rhona Brankin's amendment 185. The same debate took place at stage 2. On balance, the committee felt that the provision to which amendment 185 relates should remain in the bill, but there is no reason why responsible access cannot be taken in areas where young trees are growing. The amendment is a positive step in the right direction.

It is important to ascertain what is in ministers' minds. The Justice 2 Committee did that and put that on the record at stage 2. If they take that into consideration, no good landowner, land manager or farmer should fear the bill.

The right to roam the countryside responsibly has to be a wide right or there is no point in having it. If we are going to restrict access to the extent that Bill Aitken proposes, we might as well rely on the confusion that exists on the issue. This aspect of the bill is important and I welcome the action that the Executive has taken.

Photo of Lord David Steel Lord David Steel Presiding Officer, Scottish Parliament

The question is, that amendment 41 be agreed to. Are we agreed?

Members:

No.

Division number 8

For: Aitken, Bill, Davidson, Mr David, Douglas-Hamilton, Lord James, Fergusson, Alex, Fraser, Murdo, Gallie, Phil, Goldie, Miss Annabel, 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, Chisholm, Malcolm, Craigie, Cathie, Crawford, Bruce, Cunningham, Roseanna, Curran, Ms Margaret, Deacon, Susan, Eadie, Helen, Ewing, Fergus, Ewing, Mrs Margaret, Fabiani, Linda, Ferguson, Patricia, Finnie, Ross, Fitzpatrick, Brian, Gibson, Mr Kenneth, Gillon, Karen, Godman, Trish, Gorrie, Donald, Grahame, Christine, Grant, Rhoda, Gray, Iain, Hamilton, Mr Duncan, Harper, Robin, Henry, Hugh, Home Robertson, Mr John, Hughes, Janis, Hyslop, Fiona, Ingram, Mr Adam, Jackson, Dr Sylvia, Jackson, Gordon, Jamieson, Cathy, Jamieson, Margaret, Jenkins, Ian, Kerr, Mr Andy, Lamont, Johann, Livingstone, Marilyn, Lochhead, Richard, Lyon, George, MacAskill, Mr Kenny, Macdonald, Lewis, MacDonald, Ms Margo, Macintosh, Mr Kenneth, MacKay, Angus, Maclean, Kate, Macmillan, Maureen, Martin, Paul, Marwick, Tricia, Matheson, Michael, McAllion, Mr John, McAveety, Mr Frank, McCabe, Mr Tom, McConnell, Mr Jack, McGugan, Irene, McLeish, Henry, McLeod, Fiona, McMahon, Mr Michael, McNeil, Mr Duncan, McNeill, Pauline, McNulty, Des, Morgan, Alasdair, Morrison, Mr Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Murray, Dr Elaine, Neil, Alex, Oldfather, Irene, Paterson, Mr Gil, Peacock, Peter, Peattie, Cathy, Quinan, Mr Lloyd, Radcliffe, Nora, Raffan, Mr Keith, Reid, Mr George, Robison, Shona, Robson, Euan, Rumbles, Mr Mike, Russell, Michael, Scott, Tavish, Sheridan, Tommy, Simpson, Dr Richard, Smith, Elaine, Smith, Iain, Smith, Mrs Margaret, Stephen, Nicol, Stevenson, Stewart, Stone, Mr Jamie, Sturgeon, Nicola, Swinney, Mr John, Thomson, Elaine, Ullrich, Kay, Wallace, Mr Jim, Watson, Mike, Welsh, Mr Andrew, White, Ms Sandra, Whitefield, Karen, Wilson, Allan, Wilson, Andrew

Photo of Lord David Steel Lord David Steel Presiding Officer, Scottish Parliament

The result of the division is: For 17, Against 105, Abstentions 0.

Amendment 41 disagreed to.

Amendment 181 not moved.

Amendment 73 moved—[Ross Finnie]—and agreed to.

Amendment 179 not moved.

Amendment 182 moved—[Roseanna Cunningham].

Photo of Lord David Steel Lord David Steel Presiding Officer, Scottish Parliament

The question is, that amendment 182 is agreed to. Are we agreed?

Members:

No.

Division number 9

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

Photo of Lord David Steel Lord David Steel Presiding Officer, Scottish Parliament

The result of the division is: For 103, Against 18, Abstentions 0.

Amendment 182 agreed to.

[Amendment 183 moved—[Roseanna Cunningham]—and agreed to.]