Time to protect the island way of life
(from The Orcadian dated December 27, 2001)

Devolution and the Scottish Parliament are unfamiliar concepts with which we are all coming to terms. Some of the comment has, inevitably, been jocular but some of it has been quite serious – as it ought to be, given that the power to legislate is by no means insignificant.

That power has so far been used largely for house-keeping and – for some inexplicable reason – in connection with a Bill aimed at outlawing traditional country pursuits, but it appears now to be the intention to use that power for an altogether more serious purpose. The Scottish Executive have now introduced to the Scottish Parliament (it was, incidentally, Jim Wallace, the MSP for Orkney, previously the MP for Shetland and Orkney in the Westminster Parliament and now Deputy First Minister in the Labour/Liberal Democrat administration who introduced it) a Bill, known as the Land Reform (Scotland) Bill, which – when it passes into law – is likely to have far-reaching consequences.

Describing it as the ‘flagship’ Bill, of the present administration, one Member of the Scottish Executive went so far as to suggest that it would be “the litmus test by which this Executive and this Parliament will be judged.” What, then, is this Bill all about? The Bill is in three parts – it proposes introducing a community right to buy; a crofting community right to buy; and access rights.

So far as the community right to buy is concerned, the aim of the Bill appears to be to give rural communities a right to buy their land. Throughout rural Scotland, communities will be able to set themselves up as ‘Community Bodies’ and as such will be entitled to register an interest in the land surrounding their community. That done, the community can then rest content that, their interest having been registered, land cannot then be sold without their being given the opportunity to buy. Radical though it may be, that proposal is not, however, a matter with which we are here concerned.

So far as the crofting community right to buy is concerned, much the same principles appear to apply. The difference appears to be that whereas the right to buy of the rural community is to operate only when the land comes on the market, the right to buy of the crofting community will be operable at any time. Crofting was once memorably described as “an area of land surrounded by legislation” and whether this additional piece of legislation turns out to be a ‘straining post’ or a ‘gate’ through which the concept is allowed to escape, remains to be seen. Again, however, that is not a matter with which we are here concerned.

What we should, perhaps, be more concerned about is what is to be found in the remaining part of the Bill – that part which deals with what is described as “access rights”. The declared intention of the Bill in that respect is stated to be “to confer and regulate public rights of access to land for recreational and other purposes”. The first thought that occurs about such a proposal is that it appears to infer that access to land presently operates uniformly throughout Scotland or in any event to propose that in future access to land is going to be operated in the same manner throughout Scotland.

The correct position, I venture to suggest, is that the way in which access to land operates is not uniform throughout Scotland. There may even be differences within Scotland itself but there is most certainly, as we are all aware, a radical difference between land ownership in Scotland (which is feudal) and land ownership in Shetland and Orkney (which is udal). Describing such systems in full is a complex task which space does not permit. However, the position which has acquired the force of law in both Shetland and Orkney can, I suggest, be described in outline as follows:-

Every islander knows, I suggest, that if they want to spend a pleasant evening taking a walk up the highest hill in the vicinity then (provided they do not cause any damage) they are free to do so. Every islander also knows, I suggest, that if they want to take their boat and visit on the isles then (again provided they do not cause any damage) they are free to do so. It has been that way, I suggest, for centuries and it is something that has its origins in udal law. What then, does this Bill propose for the future?

So far as appears from the Bill, the proposal appears to be to seek to strike some sort of balance between the rights of the public and the rights of landowners. The public is to be given statutory ‘access rights’. It is not entirely clear from the Bill how these ‘access rights’ are to be created but the Bill does propose allowing an interested party to make a summary application to the local sheriff for a declaration that the land in question is, or as the case may be, is not, land in respect of which access rights are exercisable. Once established as an ‘access right’, the Bill intends to impose a duty upon the local authority to uphold such ‘access rights’ (although it is also intended that they should be able to restrict them so as to protect them). The Bill also proposes imposing a reciprocal obligation on landowners to manager their land in a way that respects those ‘access rights’. As a quid pro quo, however, the Bill would appear to allow landowners to exclude the public from those parts of the land which are not in fact recognised as ‘access rights’.

Applying that proposal to the islands, the resultant position would appear to be as follows:- given that generations have walked to the top of that highest hill, it would presumably be possible, if necessary, to ask the local sheriff to declare any path to the top of that hill to be an ‘access right’. By the same token, however, all of the land outside of that path would be land from which the landowner could exclude the public. In the same way, a particularly regularly visited piece of an island might be declared an ‘access right’ but the public could be excluded from the rest of the island by the landowner. I wonder, myself, whether it is desirable to introduce such a system into these islands. I know that, when growing up in the islands, I certainly enjoyed the freedom to roam at will (without, so far as I am aware, causing any damage) and I would like to hope that those who follow could enjoy the same freedom.

Whether or not they do enjoy those freedoms in the future is, of course, something upon which the will of the majority will prevail. This Bill will, given the present political make-up of the Scottish Parliament, almost inevitably become law in some shape or form. What concerns me most, however, is the way in which these islands have been treated as part of that process. It is simply not good enough, I suggest, to present islanders who have a completely different (udal) legal system with a Bill drafted and presented in this manner. It could be strongly argued that such legislation is incompetent or would at least require a referendum in the islands. At the very least, the elected representatives and/or their officials ought to be making strong representation to preserve such of the islands’ unique legal system as their constituents feel merits protection. If udal law – or, to put it another way, the island way of life – is considered by the majority of the islanders to be something worth preserving then it may be that the time has come for the islands to give this proposal serious consideration.

Richard N. M. Anderson is a law graduate of Aberdeen University and a specialist in udal law.