The good citizens of the Royal Burgh of Auchterarder face being banned from walking across their common land because of the risk that they might choose to stop and gaze across at the Ryder Cup golf competiton taking place on the neighbouring golf course at Gleneagles. Safety and security are being cited as reasons why part of the Auchterader Golf Course (which is part of the common good land of the Burgh) and a public footpath are to be closed for the duration of the competition.

This is a bizarre state of affairs. Let me explain why.

The right of responsible access to land is enshrined in Part 1 of the Land Reform (Scotland) Act 2003. It was always recognised, however, that there were circumstances in which areas of land could and should be exempted from these rights. If land was to be used for an agricultural show, a sporting event or a pop concert where attendees were to be admitted on payment of a fee, then it is perfectly proper that the public’s right of access should be suspended for a defined period of time. Section 11 of the Act provides that local authorities can make orders exempting land and where it is to cover a period of more than six days then Scottish Ministers must approve and the public has a right to submit objections.

The Act also placed a duty on local authorities to define Core Paths – routes along which the public could feel comfortable walking and enjoying their access rights. But Section 11 did not provide any means for exempting Core Paths and so, in 2013, the Scottish Government proposed the Land Reform (Scotland) Act 2003 (Modification) Order 2013 which would amend Section 11 and allow Core Paths to be closed because of animal disease outbreaks or because of an event taking place. Draft Guidance states that such exemptions would be limited to events where paid admission was charged and in the interests of safety and security involving “competition participants and spectators.”

The Draft Guidance noted that “We know that there will be requests for section 11 exemptions for two major events in 2014 – the Commonwealth Games and the Ryder Cup.”

So far, so good.

It is perfectly reasonable for the organisers of the Commonwealth Games to seek to exempt the shooting range at Barry Buddon from the legal right to walk across it and along any core paths for the duration of the Games. It is also reasonable in the context of the Ryder Cup venue at Gleneagles.

But it is one thing to seek to exempt land over which you have control and are managing for the purposes of an event open to the paying public. It is quite another indeed to seek to suspend the public’s right of access over other land – particularly over common land that belongs to the people of Auchterarder.

And that is what is being proposed in Auchterarder.

In a paper prepared for the Auchterarder Common Good Fund Committee on 26 February 2014, a map shows the extent of land over which the organisers of the Ryder Cup wish to apply for an exemption including Core Path AUCH/35/1 (see maps below).

It notes that the north east boundary of the Gleneagles land “abuts Auchterarder Golf Course and people standing on the Auchterarder course side of the boundary might be able to view the Ryder Cup action.”(1) The image below shows the boundary.

 

Oh dear! Folk might get to see some golfers without paying….

The report goes on to say that discussions are underway between Ryder Cup Europe, Police Scotland, Perth & kinross Council and Auchterarder Golf club “about how public order and safety can be maintained at this area during the event, as there is a risk that uncontrolled numbers of people may try to view the event from this location.”

If no restrictions are put in place there is a potential for a build up of people, seeking to use the Core Path/Right of Way in order to view the event, which creates a safety, security and public order risk.”

In order to obtain a Section 11 Order, an application has to be made to Perth & Kinross Council by the organisers. The Ryder Cup is a partnership between the Scottish Government, Ryder Cup Europe and Diageo. Such an application will be for a period of greater that six days and thus needs to be referred to Scottish Ministers. The public have the right make representations and objections and Ministers may hold a public local inquiry if they wish.

On 11 December 2013, the Minister for Environment and Climate Change, Paul Wheelhouse acknowledged such an application during evidence to the Rural Affairs, Climate Change and Environment Committee (Col. 3119).

I can assure the committee that if any proposal comes before me, I will take a balanced view on the need to ensure public access to land under the Land Reform (Scotland) Act 2003 and the strong sentiment across Scotland about ensuring the right to responsible access, while at the same time protecting the public interest and public safety and ensuring the security of the events themselves. It is a balancing act, but we will take all those matters into account.”

Scottish Ministers will thus be the decision-maker in an application for a Section 11 Order to which they (as one of the three organisers) are a party – which is in itself interesting.

It appears to me that this whole process is a gross over reaction to what is a real but managable possibility of public order problems. I am no expert in the law on such matters but I would be surprised if there were not already powers available to the police to deal with such an eventuality. In any event, exempting this land from access rights does not in itself prohibit anyone walking over it and thus potential public order issues may still arise. (2)

So here is what I think should happen.

If an application is made, the citizens of Auchterarder should register their objections to Scottish Ministers and the application should be refused.

Auchterarder Community Council should then, in association with the police and the Council, set up a viewing zone open to the public with associated refreshments and public entertainment. Mini-golf can be laid on for children (and adults). Spot the celebrity golfer competitions can be organised. Information can be provided about the history of the commons of Auchterarder. Such an event would be free but ticketed so as to avert any security and public order problems.

Commons are for the people and not for corporate elites.

 

(1) Auchterarder Common is leased to the Auchterarder Golf Club until May 2075.

(2) It is not commonly understood that Part I of the Land Reform (Scotland) Act 2003 confers rights which are there to be exercised and relied upon as people choose. Over areas of land where the rights do not apply (by being exempted from the scope of Act or by temporary suspension via Section 11), the Act does not prohibit or ban the public. In such circumstances they are, in effect, subject to the common law as it applied before the Act came into force.


Today, Scottish Labour published “Together We Can” – a document outlining its vision for the future of Scotland. This follows the publication of its Devolution Commission (2.1Mb pdf) proposals on Wednesday – see my blog on that in relation to the proposals on the Crown Estate which I still don’t understand.

Anyway, today’s document has some interesting things to say about how Scottish Labour sees the land reform agenda in the years to come and I reproduce the relevant extract here in full from page 44. It includes a statement on the Crown Estate.

“Alongside promoting safe and secure communities, we want people to have more ownership of them. Under the last Labour-led Scottish Government, we began the process of giving our communities their land back.

Community ownership of assets is a powerful vehicle not just to tackle social injustice and inequality, but also to deliver economic growth. It gives power to the people and allows them to transform their communities.

The Isle of Gigha is a fantastic example of how community ownership can transform an area’s future. The people who live there are building new homes, developing renewable energy schemes and reversing population decline. Together, they are breathing new life into their community.

The 2003 Land Reform Act, which gave rural communities the right to buy land in their neighbourhood, has allowed remarkable progress to be made, with almost half a million acres now in community ownership.

Despite that, Scotland’s land ownership patterns are significantly out of line with what is the norm in most of Europe. It is shocking that just 16 owners possess 10% of Scotland’s land, and get tax breaks for the privilege. If we want to have any real hope of changing the current pattern of land ownership in Scotland then we have to be bold and radical.

Scottish Labour will commit to extend rights for the community to buy land across Scotland. If it is in the public interest for communities to own their land, then they should have the right to buy it, even when the landowner is not a willing seller – that is a power worth having.

Just as community-owned renewable energy schemes work in rural areas, the same principle can work in urban communities. We believe in a community’s right to own land and assets, and they also have the right to enjoy them. Scotland’s stunning landscape and fascinating wildlife are some of our country’s best assets, and the success of our two National parks, in the Cairngorms and Loch Lomond and The Trossachs show that they can bring economic benefits as well as environmental ones. We will explore how best to build on this success in those parts of Scotland where national parks could work.

In addition, we are convinced of the strong case that has been made to devolve the administration and revenue of the Crown property and rights and interests in Scotland, which are currently managed as part of the Crown Estate. This would ensure that the Crown Estates expertise and capital would assist local communities to manage and develop the seabed and foreshore.”

Exactly two years ago today, the Scottish Affairs Committee of the House of Commons published its report on the future of the Crown Estate in Scotland. Its conclusions were unequivocal. The responsibilities of the Crown Estate Commissioners in Scotland (CEC) should be ended and, subject to agreement on a scheme of devolution to the local level, the administration and management of the Crown Estate should be devolved. This recommendation was based upon the first comprehensive inquiry into the matter since the CEC was formed in 1956. Earlier this month, the Committee re-iterated its original findings in this follow-up report.

Yesterday, the Scottish Labour Party published its Devolution Commission proposals (2.1Mb pdf) on further devolution of powers from Westminster to Scotland. Here is what is said about the Crown Estate (on pages 239-240).

602. Another area where it has been suggested scope for devolution to local authorities exists is in regard to the Crown Estate. In March 2012, the House of Commons Scottish Affairs Select Committee published a report on the Crown Estate Commissioners’ (CECs) management of the Crown property, rights and interests which make up the Crown Estate in Scotland. The Committee concluded: “at best, the organisation [CEC] has a fundamental misunderstanding of the needs and interests of local communities and indigenous industries on the Scottish coast … At worst, it behaves as an absentee landlord or tax collector which does not re-invest to any significant extent in the sectors and communities from which it derives income”. Accordingly, it was recommended that the administration and revenues of the ancient Crown property, rights and interests in Scotland, which are currently managed as part of the Crown Estate (including the seabed and the foreshore) should be devolved then decentralised as far as possible to local authorities and local communities, with devolution to the Scottish Parliament conditional upon an agreement between the Secretary of State for Scotland and the Scottish Government on how such a schemes should be implemented, on the basis of the principle of subsidiarity. This agenda has also been adopted by the Our Islands Our Future campaign.

603. There is clearly potential for devolution of the Crown Estate Commission’s powers. We agree with the analysis of the Scottish Affairs Select Committee report on the Crown Estate, and hope the government will act on the recommendations in their report of March 2014

604. We see merit in the argument for full devolution of the Crown Estate’s responsibility for the seabed and foreshore to local authorities. On the other hand, we are conscious that this could potentially undermine cross subsidy of investment and technical expertise on renewables. We need to balance these two competing viewpoints. We agree with the Crown Estate that the default assumption is that the seabed and foreshore should be managed by local authorities or local communities and that they have developed leasing arrangements which make this possible. If this can be made to work, allowing the Crown Estate to take an interest in particular developments, we will support this. Thus, we propose to use the Crown Estate’s expertise and capital as necessary, but allowing local councils and local communities to manage the seabed in other respects, in order to achieve real devolution to very local areas while preserving the benefits of the wider Crown Estate resource.

605. We therefore endorse the idea of the Crown Estate developing more effective partnerships at community, local authority, and Scotland levels. This means two things in practice. Firstly, local management agreements between local authorities and the Crown Estate, which are an example of best practice, should be applied as widely as possible, with the Crown Estate establishing appropriate mechanisms to facilitate maximum local authority and community engagement. Secondly, a Memorandum of Understanding between the Scottish Government and Crown Estate should be agreed in respect of their common objectives on the development and management of the seabed and foreshore, and those local authorities with an interest in this area should be fully consulted throughout as to its contents.

In another document published by Scottish Labour – Together We Can (2.8Mb pdf), the party states that,

“…we are convinced of the strong case that has been made to devolve the administration and revenue of the Crown property and rights and interests in Scotland, which are currently managed as part of the Crown Estate. This would ensure that the Crown Estates expertise and capital would assist local communities to manage and develop the seabed and foreshore.”

So – the Scottish Labour Party agrees with the Scottish Affairs Committee’s recommendations (full devolution) and hopes that the Conservative/Liberal Democrat Coalition Government will implement them (despite it having made clear that it won’t).

But – if Labour form the next UK Government, it will not implement the recommendations and, instead, adopt the partial (and as far as I can see) a rather muddled approach outlined above.

What is going on?