Open spaces: Scottish Parliament may decide the right to roam in the Highlands

A right to roam across Scotland's hills will be one of the first Bills to be passed by the Scottish Parliament, predict the walkers. But it's not something that those in the know are holding their breath about. Stephen Goodwin and

Charles Arthur look at the argument over access north of the Border.

Walkers and climbers in Scotland are looking to the newly elected members of an Edinburgh Parliament to give them a sense of security; that they are not going to be ordered off the hill by a fulminating factor or deer stalker.

The tradition of open access to the Highlands has occasionally worn thin on some sporting estates.

"Even experienced hill-goers admit to a feeling of unease that they could suddenly be told to get back to the road," said Nick Kempe, president of the Mountaineering Council for Scotland (MCofS).

The earliest date that a Bill enshrining tradition in law could come before a working Scottish legislature would be 2000. However, campaigners point to the absence of a second chamber in a home-ruled Scotland, removing the old threat of access legislation being blocked by a House of Lords comprised of reactionary landowners.

Scottish Natural Heritage has been asked to advise ministers on a way forward. Although the quango has yet to show any signs of shedding the antipathy to access legislation that it held under the Tories, campaigners believe the Access Concordat brokered by SNH two years ago has already confirmed a de facto right.

"There has been confusion about peoples' rights and responsibilities in Scotland," said Dave Morris, the Scottish spokesman for the Ramblers' Association (RA), which has been pushing for the law to be codified. "We think that the position is that when people walk in most land in Scotland, they're doing so lawfully."

Prior to the Sixties, it was accepted that there was no law of trespass in Scotland. Importantly, where there was habitual "trespass", in its colloquial sense, and the owner took no steps to prevent it, then the walker gained an implied consent.

But a study by Alan Blackshaw, a former SNH board member, for Scottish Wildlife and Countryside Link, has shown how the law was re-interpreted - he would say "mis-interpreted" - by the Nature Conservancy which held that the "freedom principle" was a myth. This view was accepted by ministers in the mid-Sixties and has coloured official thinking on Scottish access ever since.

If the earlier view of the law is accepted - and it was backed the weighty Law Reform Committee for Scotland in 1957 - campaigners believe it largely removes the threat of landowners getting compensation if the Bill goes through, since access was already accepted in practice. The landowners' acceptance in the Concordat of the "public's expectation of having access to the hills" confirms this position.

"The fact that no compensation will have to be paid, or very little, should be music to the ears of a government reluctant to spend money on anything," Mr Kempe observed.

You can commit trespass in Scotland, principally by camping. The Trespass Act of 1865 makes it a criminal offence to create "an encampment" on somebody's land. Created for historical reasons, this law is still used occasionally by the police to move people on.

But groups such as the RA and the MCofS would prefer to have the right to roam - and camp - anywhere, except in particular places.

Access groups have tried for decades to get formal versions of the "right to roam" written into legislation covering Scotland. A recent example was the Deer (Scotland) Bill of 1996. But Mr Morris has repeatedly seen such attempts fail. "Key members of the Lords have big sporting estates in Scotland. If a proposal doesn't serve their interests it falls."