Protecting the right to roam as lockdown eases

For many of us trips outdoors have been the highlight of our day over the past few months. A much-needed refuge from video conference calls and home-schooling. While probably not conscious of it, we have been exercising what is often referred to as our “right to roam”.

Since the implementation of the Land Reform (Scotland) Act 2003, people in Scotland have enjoyed the right of “responsible access” to land (provided that land is not excluded from access by the legislation) for the purpose of recreation. Landowners, including public bodies, have a duty not to interfere unreasonably with this right.

The emergency coronavirus legislation did not specifically address access rights, but many local authorities and other public bodies took steps to curtail the public’s right of access for reasons of public safety. This is one of many examples during the COVID-19 crisis where public bodies have the difficult task of balancing conflicting legal considerations in the public interest.

When the COVID-19 risk was at its most acute, the decision to restrict rights of access was probably a straightforward one: the public safety risk outweighed the right to roam. However, the position becomes more difficult as restrictions are eased and the risk to public safety diminishes. What might have been a reasonable restriction two months ago may not be reasonable now or in two months from now.

The right to roam has intrinsic value; but it also has a substantial indirect economic value. Many businesses in the tourism, hospitality and retail sectors depend on the public’s ability to enjoy relatively unrestricted access to the countryside.

These businesses make a significant contribution to the Scottish economy. Mountain biking, for example, contributes £105m. Taken together with other types of nature and adventure tourism, the economic imperative of supporting the businesses relying on the ‘right to roam’ is obvious.

Clearly businesses across Scotland and the UK are suffering. Where there is financial instability, legal challenges often follow, and we are already seeing a number of businesses taking steps to challenge decisions of the Scottish and UK Governments in response to the COVID-19 outbreak.

So how can public authorities fulfil their statutory obligations while supporting Scottish businesses?

1. Critically review restrictions on access as circumstances change to ensure they are still justified.
2. Engage with relevant stakeholders (e.g. landowners, access user groups, businesses, emergency services) to identify concerns and opportunities for creative and collaborative solutions.

All landowners in Scotland have a duty to give effect to people’s ‘right to roam’, and there is a statutory mechanism for challenging a landowner’s actions (or inaction) in this regard. However, public bodies are often held to a different standard, and they arguably have a special role to play at this moment as the country and the economy looks to get back on its feet.