COUNTRYFILE: A Right to Roam without borders

What’s the difference between a field in England and a field in Scotland?

By Nick Kempe, of Parkswatch

On Saturday I was involved in a demonstration organised by the Right to Roam campaign at Scots Dyke, constructed in 1552 to delineate the border between Scotland and England.  As one activist straddling the border put it, this foot has a right to be here, the other one doesn’t.  The differences in access laws between the two countries are unjustifiable from a human rights perspective.

At the event a group of us handed over a draft right to roam bill,  based on Scotland’s world-class access legislation, to activists in England. They were keen to learn from our successes. It is over twenty-five years since I was involved in a meeting between recreational organisations from the two countries at Ullswater, in the Lake District.  There we failed to persuade our counterparts in England to support the right to roam.  Now the ground has shifted and rightly so.   While we still have significant access problems in Scotland (as frequently discussed here), they are not about the legal framework or the creation of a statutory right of access, rather the problems stem from failures to implement the law.

Both Channel 4 News (see here) and the Guardian (see here) provided excellent coverage of the event and what it was about.

The English landowners arguments against access

The arguments given by the Country Land and Business Association (the English equivalent of Scottish Land and Estates) to Channel 4 against extending creating a right to roam in England are worth considering as they were so ludicrous:

  • First the CLBA claimed England is different because of its much greater population (they claimed nearly 70m but that is an approximation of the UK figure, which includes Scotland, and the actual number is c56m).  The implication is that people,  by their very existence, are bad for the countryside and should be kept out.  This conflicts with the UK Government’s commitment earlier this year that everyone in England should live within a 15 walk of nature because there are so many people with so few places to go for their physical and mental health.
  • The most important argument against this from a legislative perspective, however, is that generally people, even in large numbers, are not a problem. Proof of that is visible in any city park where formal flower beds survive, flourish even, despite the thousands of city dwellers.  Often there is not even a “keep off” sign.
  • Despite this, the CLBA spokesperson was much concerned with the implications of access rights for crops and “food security”, claiming that Scotland’s rights are not suitable to England because of a greater diversity of crops south of the border.  This claim  may well be true but, according to the National Farmers Union of Scotland (see here), in 2018 a fair range of fruit and veg was still produced north of the border :
The list is not exhaustive – kale, for example, is not mentioned but perhaps that is imported now?
  • Moreover, with less than 9% of the population of the UK, “more than 12% of the UK cereal area was grown in Scotland”.
  • And as for livestock, according to the NFUS, Scotland has  “almost 30% of the UK herd of breeding cattle” and more than “20% of the UK breeding flock” of sheep.

Shepherds tend their flocks in Glen Fruin, high above Helensburgh.

Clearly, the existence of the right to roam hasn’t stopped Scottish Farmers farming, whether this is growing fruit and veg or keeping livestock.  That should not be a surprise to anyone who understands that Scotland’s right to roam is based on the basic principle that you can go almost anywhere (not people’s gardens) so long as you do not cause damage.  The converse to that is Scotland’s right to roam did not remove any of the laws that rightly protect farmers and farming so that, if someone tramples over a crop for example, they are committing a criminal offence.  The conclusion is that access rights are quite compatible with farming in Scotland and would be in England too.

  • The CLBA’s third claim was that a right to roam would be incompatible with the need to plant trees to combat climate change. This is best described as brass neck!   The main reasons for the lack of woodland in England and Scotland is the consequence of overgrazing by sheep and deer (a major problem now in England too) and muirburn, all activities managed by landowners and has nothing to do with visitors to the countryside. In fact, many visitors, if given the opportunity, would love to plant a tree in the countryside. One suspects the real explanation for the CLBA’s stance is they do not want people in woodland because of shooting interests.

Landowner double standards and learning from King Charles

Historically, a number of landowners and farmers have owned land in both countries and there are some interesting cases of landowners tolerating access in Scotland but trying to prevent access in England.  A prime example is Alexander Darwall, the very rich man who as I predicted is now appealing the second Dartmoor Judgement (see here).  Mr Darwall also owns an estate, Suisgill, in Helmsdale in Sutherland whose website features a graphic referring to the Scottish Outdoor Access Code (SOAC).

While the quote on access and deer is selective and taken out of context – there is a whole lot more advice on access and deer management (see here) – the key point is that in referring to SOAC Mr Darwall appears to be implicitly endorsing ALL the advice in it, including that on camping. So why is he taking such a different approach in England?

The Royal Family are the most influential landowners in the UK and own land north and south of the border.  A few days ago there was a story about King Charles (see here), who has been up in Balmoral, meeting some mountain bikers while out for a walk and complaining to them about the midges.  One suspects that it was not just the walk but the chance to talk to ordinary people that did him good.  The point is, however, that if people can exercise their access rights at Balmoral without threatening the safety of the King (the story does refer to the presence of soldiers) or with his ability to enjoy his property, it can be done anywhere.

Among the Land Reform proposals the Scottish Government is currently considering is a public interest test when it comes to people buying large areas of land (defined as over 3000 hectares).  Part of that, I would suggest, should include checks on whether prospective landowners respect Scotland’s access rights.  Had Mr Darwall had to make such a commitment before purchasing Suisgill in 2016, the Dartmoor cases might never have happened.

Ramblers on the run?

Rather than supporting the Right to Roam event, Ramblers staff were banned from attending and the London office issued an extremely negative statement to the Guardian which was reported as follows

“But there are splits in the English access movement: the Ramblers group believes the English act can be enhanced to include access to watersides (but not on to the water), to woodlands and some downlands. England’s very large number of rights of way makes Scotland’s model unsuitable and unnecessary, and would undermine the “trust and consensus” built with landowners, they argue.”

This not only sells water sports (swimming, canoeing, sailing) down the river – the British Canoe Association supports the right to roam –  and leaves the position of cyclists and horse-riders unclear, it is incompatible with what the Ramblers own website describes as Scotland’s “world-class” access rights:

The Ramblers in England also don’t appear to appreciate their position is incompatible with their previous arguments – still on their website (see here) – for what they call the freedom to roam:

“The freedom to roam means you can walk in open landscapes without fear of trespassing. You don’t have to worry about sticking to paths. You can walk without constraint, setting yourself, and your mind, free…………………..An expanded freedom to roam will give more people the chance to walk in nature close to home”.

But not, it appears, the right of ramblers in England to step off a right of way through fields to sit under an oak tree or take a closer look at something of interest “without fear of trespassing“.  According to this new doctrine, people should only have the right to enjoy nature from afar.  There is no justification for restricting people to paths, whether rights of way or not, and we won all those arguments in Scotland 25 years ago. The crucial point is people should have a right to go anywhere to enjoy nature so long as they don’t do damage.

I have  been a member of the Ramblers for something like 30 years because I believe that in the long-term they were committed in principle to extending access rights across all land and water on the Scandinavian model (a policy which was adopted at one of their conferences).  It is very sad to see their branch office down in England being so out of touch and losing their way so completely.

The makings of a right to roam campaign in Scotland

I had not attended such an inspirational event about access since the Land Reform Act was passed in 2003.  It was not just that people from England wanted to learn from Scotland or that activists from both sides of the border have begun to work closely together – something that Andy Wightman remarked has become increasingly rare at the grass roots level – or that people were obviously enjoying themselves.

For me, what was really inspirational was the number of people attending from Scotland, a younger generation who really value our right to roam and who are concerned it is being eroded through a mixture of neglect and maladministration.  What is more they want to do something to change this for the better, inspired by what the Right to Roam campaign has been doing down in England.

Among the issues we discussed were the closure of the Radical Road in Edinburgh (over five years now), the Cairngorms National Park Authority’s proposal to restrict access in an attempt to save the capercaillie, the Loch Lomond and Trossachs National Park Authority’s camping management bye-laws, the proliferation of no camping signs across Scotland, the Pentlands Hill Race (called off this year due to the withdrawal of co-operation by landowners) and charging for access.

There are plenty of other examples of access activists in Scotland banging their heads against a brick law when it comes to having our access rights respected.  All this provides plenty of potential and justification for some direct action on the model developed by the Right to Roam campaign in England.  I will use parkswatch to do all I can to support that. 

7 Comments on “A Right to Roam without borders”

  1. I disagree that access problems in Scotland are “not about the legal framework”. A look at the Scotways archive of previous legal cases relating to the Scottish access laws shows that most are about people using the provisions of that law to restrict access (and that their chances of success apparently depend on how rich they are). It could be argued that the “legal framework” also encompasses the larger issue that rights exist in theory but are not enforced because the legislation failed to adequately address how this would be done in practice.
    It is important that the campaigners in England understand that a law granting what appears to be universal access is not a panacea and that the devil is in the detail. I recently returned from walking in Derbyshire where the main issue is large estates preventing access which sit like “black holes” in an otherwise good path network. Paths just end where the obvious historical continuation is an estate track plastered with “private” signs. If the Scottish legislation applied there would be no difference as the presence of gate lodges and other estate buildings would invoke the “curtilage of a dwelling” exception and the power of the estates would ensure it was upheld if challenged.
    While universal access would be nice to have, on both sides of the border what would have more effect in practice would be an access body with powers and resources to look at path networks in detail and make changes as required.
    The English path network is full of anomalies where paths go through farmyards and even gardens or take circuitous and illogical routes for historical reasons but can’t be modified even where there is an obvious better route for everyone.
    Essentially English campaigners should be aware that the Scottish model is seriously flawed and should be used as a guide to how not to do it.

    1. Hi Niall, I don’t think you have got this right. Large estates are NOT exempt from access rights in Scotland. Like other properties it is only the curtilage of the the building and the garden which is exempt from access rights and there are a number of legal cases in Scotland which have confirmed that Gloag, Snowie and Drumlean. While in those cases the landowners wanted exclusivity to a large area of ground claiming their land was part of a garden etc, the judgements did not support that and have treated the “grounds” around a property as being included in access rights with only the formal garden areas exempt. In theory of course landowners could decide to try and create enormous formal gardens but that is very expensive. Scotland’s access laws would therefore help deal with the issue you raise (A bigger issue is where landowners are trying to turn their grounds into a paying attraction). Where I would agree with you is the paths provisions in the Land Reform Act are too weak but, as you point out, so are chopped off rights of way in Derbyshire. The draft legislation we handed over to the Right to Roam in England left the paths section blank, so it could build on and improve the Rights of Way network in England

      1. That is exactly the point. In the cases I mentioned there is a building or group of buildings at each access point around the perimeter of the estate so the track is within the individual curtilage. The estates would use their considerable resources to fight legally to retain this and as the cases you mention show, they would win. They don’t have to build enormous formal gardens, just quite small ones strategically placed across the practical access points. Exactly what has been done in Scotland at places like Caladh. While in theory under the Scottish system you could bypass the area around the dwellings and access the track further in, we know how that works in practice, a few fences and some impenetrable undergrowth, ditches etc. and job done.
        Around here many of the rights of way have a farm or other buildings where the track meets the road, same applies, gates, dogs etc. yes, they are supposed to allow access or provide an alternative – report it to the LA access team, sure, that’ll work… and that is my point and what the English campaigners need to understand, without an effective enforcement mechanism built in the whole thing is a waste of time.

  2. While it can be agreed thatanonmylies exist within the path and roads network in Scotland, many transient access rights (along what would now frequently be defined as ancient rights of way) would have predated current maps; ie: well before any open access legislation When researching old roads in the Scottish borders for a car club a few years ago, I discovered definitive maps, but observed that most do not include all such routes. However, hidden deep within the council lists of adopted roads now avaiable for study online were a large number classed ‘D’ or ‘U’ (unclassified roads). These often ran between old agricultural buildings in remoter places. The run of the route often could not even today be spotted by enlargment of online satelite imagery.
    It was reassuring that when I asked at local farms they usually freely admitted that the old “adopted” road was still there, and had never been either repossessed by the landowner, or surrendered from assigned duties under the councils ancient obligation to maintain it at Public expense. There were a few exceptions where the full road closure process was declared to have been undertaken by an estate very recently. But on the ground evidence to confirm legality of this claimed status was murky.
    This remains a legal conundrum which will only be noticed perhaps accidently – as in my case – by those who have the time and incentive for real study. Landowners or their tenants today will never admit an “open route for a motor vehicle” still exists, unless prompted by someone better informed.
    A whole lot requires further clarification still, despite the ‘scythe’ that cut away so many old feus and burdens in 2004/5. Of course hard pressed councils would be horrified to find that the public purse remained obliged by some ancient adoptive agreement to replace some culvert ,cutting or pack-horse bridge structure on a route no longer in much use.

    1. Unfortunately there are no definitive maps in Scotland. Scotways claims to maintain a record of Rights of Way but only make it available to commercial users at a price, online access for the public is stated to be an aspiration for some unspecified time in the future.
      I found, as part of another Council document and not indexed on their website, an OS map extract marked up by my local council with the rights of way in my immediate area each given a reference number. The majority of them are in reality on the ground obstructed or entirely obliterated.
      The English system of definitive maps is not perfect either. I found a section of path in Derbyshire which has signs pointing out that the path on the OS maps is wrong and impassable and directs you to the right one, apparently OS admits this is the case but refuses to do anything until the local council corrects the relevant definitive map which they seem in no hurry to do.

  3. When one is asked, during time of war, to “fight for YOUR country you would probably don a tin hat and carry a gun and off you go.
    When someone has given their life for their country we should damn well be able to wander our hills and mountains whenever we please.
    Millions died in the second world war so we could be free today. As long as you respect the countryside and remember people have to make a living from the countryside I will wander the wild country as I please.
    Anyway how did the land owners of today get ” their ” land??
    As far as I’m concerned it was stolen from the ancient, indigenous peoples of the country.

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