This post takes a further look (see here) at the Scottish Government’s continued unfair restrictions on people’s right to travel for outdoor recreation and why they have been able to get away with this.
The change in the Stay at Home “rule”
Both the UK and Scottish Governments have muddied the differences between “law” and “advice” by describing both as “rules”. The Stay at Home “rule” provides a classic example.
The legal restrictions introduced England on 5th January were initially draconian, only allowing people out of their homes for physical exercise, not recreation, similar to the first lockdown a year ago. The law was then quietly changed on 20th January when outdoor recreation was added to the list of reasonable excuses for leaving the home. In England, the stay at home law didn’t impose any fixed limit on how far you could travel for exercise or outdoor recreation, only that this had to be reasonable. The advice was to stay as local as possible and not to travel to beauty spots. The media publicity when Boris Johnson was photographed cycling in the East End of London and the £200 fines dished out to two women travelling five miles for a walk (see here), however, led to confusion about how far it was legally possible to travel for exercise or outdoor recreation.
As the pandemic lessened, people who were confident about their rights started to travel further – e.g. a fair number of people from the north west of England have been regularly going to the Lakes for the day for some weeks now – while others cowered at home. Where the law in England continued to be more draconian than in Scotland was the ban on taking exercise or outdoor recreation with anyone from another household, which lasted until 8th March, and the level of fines which was much higher than in Scotland.
The end of the Stay at Home “Rule” in England on 29th March was marked by significant changes in both the law and guidance. On that date the Health Protection (Coronavirus Restrictions) (All Tiers) (England) Regulations were repealed entirely and replaced by the Health Protection (Coronavirus, Restrictions) (Steps) (England) Regulations 2021 (see here). The new regulations contain no provisions about staying at home or restricting travel within the UK (as opposed to foreign travel). Instead, they limit where people can go through restrictions on gatherings (indoors and outdoors), requirements for holiday accommodation to remain closed and by listing all the various types of business that must remain closed. Alongside this, the guidance in England has also changed and now explicitly allows people to travel unlimited distances for outdoor recreation or exercise for the day. The advice not to stay away overnight will be modified on 12th April when self-catering accommodation should be allowed to re-open.
The Scottish Government has taken a very different legal approach to England. On 5th January it too introduced a new legal restriction requiring people to stay at home.
But this was in addition to the existing restriction that was in place for travel (see here). Since the list of reasonable excuses accompanying both restrictions were almost identical (both allowed you to go out for exercise and outdoor recreation within five miles of your local authority boundary), the Stay at Home restriction made very little difference to what you actually could and couldn’t do. It was this restriction that Nicola Sturgeon referred to when she said the Stay at Home Rule was being repealed on 2nd April (see here). She was right to refer to it as a rule, but since it was effectively a duplicate rule – an example of regulatory overload – its repeal will make very little difference for most people. Hence why so little changed on Friday 2nd April.
What actually matters in terms of the ability of people to exercise their freedom are, for physical exercise and outdoor recreation, the travel restrictions and, for everything else, the closures of named businesses, where you can go indoors (e.g. other people’s houses, shops ) etc etc. In Scotland some of that will change slightly on 5th April when some businesses (hairdressers, some retail, click and collect) can re-open. The travel restrictions, however, are not due to change until 26th April so people’s right to go out for outdoor recreation won’t really change till then.
There is, however, one significant exception. The removal of the Stay at Home requirement from the regulations would appear to mean that is no longer unlawful for a person to stay outdoors overnight, as long as they keep to the travel rules. In other words people should now, quite legally, be able to go camping or campervanning anywhere their local authority area and also, potentially, to go backpacking further afield as long as they start and finish at the same place within five miles of their local authority boundary.
Working that out, however, from the much amended and extremely convoluted Health Protection (Coronavirus) (Restrictions and Requirements) (Local Levels) (Scotland) Regulations 2020 (see here) is quite a challenge. In my view the law in England is far simpler to understand and includes a clear legal framework for each step out of lockdown.
Where has the science gone?
It is very difficult to see any scientific rationale or justification for the following:
- From 5th April, in Scotland you will be able to go to a hairdresser or barber, which involves close personal contact, but you cannot go more than five miles beyond your local authority boundary for a walk until 26th April. In England, it’s the other way round: you can now travel anywhere you like for outdoor recreation but hairdressers won’t be opening until 12th April
- On 26th April, on the same day residents of Scotland will be allowed to travel for outdoor recreation, the following is planned: all remaining shops and “mobile close contact services” can resume; gyms and swimming pools can reopen for individual exercise; driving lessons and tests will restart; the limit for attending weddings and funerals will increase to 50; indoor hospitality can open without alcohol and outdoor hospitality can stay open until10pm. Does Outdoor Recreation really pose similar risks of spreading Covid-19 to all these things?
- In Scotland self-catering accommodation, which involves contact with no-one if done in household groups, will be re-opening the same day as hotels, 26th April. In England self-catering is opening on 12th April, earlier than hotels, B and Bs etc. Which is more rational? In England the repeal of the Stay at Home regulations also make it quite legal for people to go and stay in second homes or their caravan so long as this is not let out as holiday accommodation, whereas in Scotland this too will be illegal until 26th April.
The discriminatory impact of the current travel regulations are severe:
- People who live in one of Scotland’s main cities, Aberdeen, Dundee, Edinburgh or Glasgow, have few options for outdoor recreation and even fewer, if they are concerned about their vulnerability to Covid-19. But people living in Inverness, Perth or Stirling can access hundreds of square miles of countryside
- For people who live in one of Scotland’s smaller local authorities geographically (Clacks, Midlothian, East Renfrewshire, West and East Dunbartonshire) the constraints on their rights are even worse. “Leafy” ,East Dunbartonshire may be, but there are 108,000 people living within 67 square miles, a population density of 1600 per square mile. That compares to Argyll and Bute, whose population of 80,000 people is spread over 2,668 square miles, a population density of 32 per square mile. People living in Argyll and Bute have many options to climb, hill walk, sail, canoe, camp, sit on a beach etc but people living in East Dunbartonshire have none of those choices.
The case for a legal challenge
The Scottish Government’s track record during Covid-19 shows it has little respect for human rights, whether this is the right of people to see their relatives in a care home (an activity with some risk) or the right of people to go out for a walk in the countryside (an activity that is almost entirely risk free). Despite considerable evidence about the very low risks of catching Covid-19 outdoors and evidence about the terrible impact these restrictions are having on people’s physical and mental health has failed to change the Scottish Government’s position or that of its official advisers.
Ten days ago Lord Braid ruled in the Court of Session that the Scottish government’s restrictions on places of worship disproportionately interfered with the freedom of religion as secured in the European Convention on Human Rights and was therefore unlawful. The restrictions were struck down with immediate effect. If restricting people’s ability to enter a place of worship, while maintaining a 2 metre physical distance, is a disproportionate response to preventing the spread of Covid-19, stopping people from travelling for outdoor recreation is surely even more so. So why has there not been a legal challenge, using for example the rights in the European Convention to freedom of movement?
The explanation, I believe lies in the fact that the 27 religious organisations that brought the legal challenge are almost completely independent of government and therefore risked little by taking the Scottish Government to Court. By contrast, the organisations that represent outdoor recreational interests, are all now dependent on Scottish Government funding and this severely constrains their ability to speak up for what is right. Ramblers Scotland, for example, may have stopped promoting the Scottish Government restrictions but they can’t actually criticise them publicly (see here).
Unfortunately our politicians, who might have created some political space that would have enabled recreational organisations to speak out, have remained silent. Perhaps the election hustings being organised by Scotways on 16th April (see here), while focused on the need for recreational infrastructure, might provide an opportunity to ask some awkward questions?
The mis-use of the law by our public authorities
In the absence of any protest or political debate about the continuing restrictions on outdoor recreation, our Public Authorities have been allowed to abuse the law.
On Friday Cairngorm Mountain quietly re-opened the road up to Coire Cas which they had closed unlawfully – i.e. without any road traffic regulation order – last December. At the time of writing they still haven’t updated their website or Facebook Page to say so.
Meantime, the Loch Lomond and Trossachs National Park Authority on 1st April announced (see here) they are not re-opening their camping permit areas until 26th April. That is an abuse of the camping byelaws. While camping was not possible while the Stay at Home restrictions were in force, now they have been rescinded people living in the three local authority areas which are covered by camping management zones should be able to camp in those areas. However, if they attempt to do so, they risk being criminalised under the camping byelaws even though they can camp quite legally in areas just outside these zones. This is wrong and is another example of the camping byelaws being used for purposes other than those for which they were originally intended.
What needs to happen?
It’s probably too late to crowd-fund a legal challenge against the travel restrictions as they apply to outdoor recreation – it took the churches months – but now is the right time to start campaigning to prevent similar limits being imposed in future. Three days ago Nicola Sturgeon announced that if she is elected again she will set up an inquiry into the Scottish Government’s handling of the Covid crisis before the end of the year. We need to ensure that any Public Inquiry includes detailed consideration of the Scottish Government’s restrictions on outdoor recreation during the crisis, including:
- how the evidence for the risks of spreading Covid-19 through outdoor recreation informed Scottish Government policy;
- how the evidence of the risks of spreading Covid-19 through using the road network informed Scottish Government policy (e.g to what extent were concerns that people might spread Covid-19 by breaking down or needing to re-fuel justified?);
- the impact that the restrictions on outdoor recreation had people’s physical and mental health and the extent to which the adverse impacts of lockdown could have been mitigated through promoting outdoor recreation for all;
- the differential impacts across Scotland of using local authority boundaries as a basis for imposing the restrictions and what consideration the Scottish Government gave to the fairness of this and potential alternatives;
- whether, taking all these factors in account, the restrictions that have affected outdoor recration have been proportionate in terms of human rights law and therefore lawful;
- how the enforcement measures in the various iterations of the Restrictions Regulations, as they applied to outdoor recreation, were applied by the police and whether this was done equitably;
- the way in which public authorities used other laws to prevent people exercising their access rights to undertake outdoor recreation (see here) and the Scottish Government’s response to this;
- and lastly, the Scottish Government’s response to people who took the law into their own hands (e.g. the closure of the public road to Cairn Gorm, the blocking off of laybys).
Quite a list! If you have other suggestions, do add in the comments below.
One more alternative viewpoint for the list Nick,
All Scotland is still in level 4. In areas of high population from 6th April it will be permissable to go to their nearby garden centres and to get their hair cut. In areas of low population density it will be theoretically OK to travel maybe all day…still remaining within the vast local authority area.. Those their may cover hundreds of miles ( IE Durness to Inverness and back the same day ) just to go to a garden centre ???? The same journey is currently usual because the one and only comprehensively equipped Highland Hospital is there. ( systemic cuts this past decade, decimated Highland NHS provision, and recruitment. Essential budgets for staffing and equipping regional healthcare centres across Highland suffered drastic cuts.Meanwhile new palatial hospital facilities became bones of contention in some major centre belt locations., Yet ,in some miracle of unclear logic, we are still told it is wrong to run any matching distance outwith Highland region to reach facilities our taxes pay for in either of Scotland’s largest cities for any reason even if we head back the same day. How can it be wrong to travel safely from an area with hardly any internal social movement this past 6 months, (hardly any Covid ) to come to a place where hundreds of thousands of people always have had a very different Covid experience just for health care there ? Yet never go to Edinburgh or Glasgow? Now we witness controls easing, cynically only just in time for a vital ballot? TV news has been showing the young and football crowds , “milling about” everywhere in Glasgow and Edinburgh. . This denial of basic rights to fellow Scots works both ways. It confers a vision of two totally different Scotlands: (a) densely populated …coincidentally vital electoral areas where most ballots will be cast ..and (b) the insignificant rest. – (a)’s recreational hinterland ? It is clear the very politicians, now thankfully now time expired from Office have all along displayed no clear concept of “stay safe” at all. Far too little control was imposed where control would have most effect on Covid propagation and spread, and far too draconian controls left in place on everywhere else. Evidence of self centered and incompetent dictat is clear now. From 26th April God help those same remote Highland communities. “Stay local, stay in Scotland” this summer is a prospect that confronts Highland region. Now after months of being told WE in the Highlands may not leave and bring our ‘breath’ to cities, after effectively being imprisoned by distance and remoteness if not forgetfulness for 6 months… the freedom for everyone else in UK to invade everywhere,only now its politically expedient, fills many Highlanders with dread.
Paragraph breaks FGS!!!
Edinburgh has had 3-4 times fewer infections, deaths, fake cases, outbreaks and assorted C19 related mayhem than glasgow, yet we are punished just the same.
Mrs Murrell wouldn’t know science if it [mode edit] her. She’s still talking about the dangers of a major C19 outbreak at a time when 3/4 of the population are functionally immune. Shame she didn’t bother closing the border in August and save 5,000 lives instead of keeping people under house arrest and not saving any.
If the same regime is re elected (and probably if it is not) the results of any public enquiry will be the same as the Salmond affair: Empty apologies and a complete lack of any actual action while carrying on as before.
In North Lanarkshire this last weekend Palacerigg car parks were open and busy but the toilets remained closed.
Well my son and I had a great midnight climb up the Meall nan Tarmachan under a red Moon as we summit at 2:30am and then a wee camp down at Finlairg Dam till 11am not a soul in sight. On our way out the NST carpark was 100% full. Midnight is the new daylight
Well done Parkwatch
Their has being much talk of how safe it is to be out doors in the fresh air And yet we’re still held prisoners The scientists seem happy to hold us down and said little in defence of the public being SAFER In the Gt out doors I suspect more to do with political and a woman desperate to hold on to power than the mental health of the Scottish people and care homes I be heading to the coast for a hair cut Inverness for a garden centre I also say The Scottish press are a let down
[Ed.This commentator wished to remain anonymous and while I prefer people to use their full name you can understand why they might not want to be identified]
I agree with many of your fellow ‘posters, here; yours are particularly accurate.
My concern has been the unwillingness of organised outdoor groups in a number of sports – these groups united through a club structure under National organisations who benefit from Sportscotland support, in the main – to engage their National representatives in lobbying on their behalf.
Not only has there been a woefully low desire amongst clubs to lobby their National representatives to engage with National Government in formulating constructive ways to enable more expansive travel & participation, there have been, in some glaring cases (seen and heard first hand by a professional Mountaineering Instructor who has had direct contact with numerous individuals from at least five outdoor recreational sports clubs across Central & Southern Scotland) concerted attempts to deny & censor comments which go against the grain of flaccid acceptance.
This has been alongside comments shared on various internal media amongst members which re-interpret & further confuse the already guggled guidelines/restrictions/rules/regulations and can only be driven by a ‘fear’ created and emphasised by politicians.
I don’t blame nor criticise any individual for holding divergent views; it’s the wonderful nature of our privileged & generally free lifestyles in Scotland. However, I do blame what I see as concerted efforts at National level (political & social) to stifle & remove what they see as dissent and this has had a consequent downloading to local level.
Outdoor Recreation aside, the rules/restrictions in Scotland have been so full of anomalies throughout. Even by 26 April I still will not be able to see my immediate family who live on the opposite side/coast of the country from me, except outdoors. Therefore I can’t have them stay over. HOWEVER, we ,who have obeyed all the rules including working from home, could all book into the same hotel with umpteen strangers who could have flouted these same rules left, right and centre. It doesn’t make sense and is grossly unfair!!
Its disappointing to see all the political bias in some comments, I agree with all Nick’s comments and disagree with our governments approach to the restrictions but I don’t think any decisions were made for political reasons. In hindsight they may turn out to be heavy handed but the intention was always to keep us all safe.
I’ve no problem with folk exercising their access rights during this time. So go out and enjoy our land sensibly. However, why do folk not think ahead? Take a packed lunch, water, power drinks, etc, etc,? Instead what I see in my local village is a stream of access takers queuing up to go into local shops (who are probably very glad of the business!) but do they really need to travel 25 miles to go into a shop? I haven’t been to Edinburgh for over a year. Is wearing a day sack “not cool”?
Travelling to outdoor destinations is also a problem – thousands of folk packed on trains for an hour going to Bournemouth and Brighton is entirely stupid. Thankfully we live under a different system up here. Stay safe, be sensible, take a packed lunch.
Any public inquiry needs, first of all, to learn the lessons from the 2001 outbreak of Foot and Mouth Disease. This was a previous demonstration of how politicians and public body administrators, when faced with a disease outbreak, fail to impose the correct restrictions in a timely fashion and then resort to panic measures. With FMD the whole countryside was closed down for many months, with huge damage to the tourism and outdoor recreation economy, despite disease control requirements only needing to apply to livestock movements between farms and their markets and with public access only restricted in the immediate vicinity of infected farms.
To understand what has happened during the current coronavirus crisis a public inquiry needs to start with detailed evidence on the various ways in which the virus was transmitted from person to person. It seems very likely that this was mostly done by aerial transmission within enclosed buildings or similar spaces (eg rail, boat or bus facilities). If so, the case for restricting public access rights to land and water and the public’s right to use the road network is very dubious. A public inquiry needs to consider whether a better strategy might have been to encourage the widest possible public use of land, water and roads, to maximise physical and mental health opportunities at a time of great stress, coupled with regulations to prevent the opening of any facilities that could lead to indoor transmission, except for shops selling food and drink, pharmacies and toilets. All public toilets would be required to be open on a 24 hr basis with enhanced cleaning arrangements. Such arrangements, combined with the 2 metre physical separation requirement, use of face masks and avoidance of group gatherings, would seem a far more logical way to deal with any future pandemic. Such requirements would also be far easier to understand than the present complex listing of ever changing rules and advice, combined with the arbitrary use of local authority boundaries to massively curtail basic human rights. Such boundaries were never intended to be used for disease control purposes and any legal challenge in the future would surely reach the conclusion that their use for such purposes is inappropriate, highly discriminatory and unfair.
Don’t forget that the politicians’ response to FMD was driven by the grossly exaggerated outcomes of the models produced by a certain Prof. Ferguson.
Mountaineering Scotland should hang their head in shame, they have been beholden to their Scottish Government funding rather than campaigning on behalf of the membership whom they are constitutionally meant to represent. They have abandoned their membership.
They are now suggesting they want a Outdoors Minister in future to champion our cause. What an abdication of responsibility , they are meant to champion climbers and walkers rights, that is why we set them up in the first place! I have no evidence of them actively wanting to vociferously campaign on our behalf. What now is the point of the organisation?
In order to make sure the Outdoors and our laws that give us the rights to roam and camp in our own country. Should we be now looking to take a judicial case against the Government in oder to make sure that NO GOVERNMENT can take away our outdoors rights and responsibilities. (The religious groups won there case) Why couldn’t we.
Another great article on the restrictions showing the lack of logic. I saw a tongue in cheek tweet a couple of weeks ago by someone who goes under the moniker of Mtns of Scotland. It went something like- You will need a Covid test, a vaccination certificate an internal rectal examination and be able to recite the Covid regulations backwards, then and only then will you be allowed to go for a walk alone on a hill outside of your local authority area.
I found it revealing when certain conservation organisations meekly followed the government line to nudge individuals off the hills, only to complain later when gamekeepers took the opportunity to kill protected species when nobody was looking.
Looks like Bungling Boris ain’t the only person that suffers from exceptionalism and entitlement.
Oh well thanks for staying home and keeping everyone safe.
It,the covid, will pass and normal service will resume with a mutual respect for each other.
Hopefully
Police have been moving on anyone camping or intending to camp over Easter. Stay home has merely reverted to stay at home, in the “where are you staying?” ie. overnight sense. We are all still prisoners, albeit now on day release.
Good point about representative organisations becoming too dependent on Government though. Same as Government wants us all dependent on benefits and handouts to coerce compliance and suppress dissent.
If anyone has access to ‘Press Reader’ an article Last Saturday (3rd April ) in the Daily Telegraph – see page 4 “State of fear”- discusses the failures of Government policy surrounding Covid -19 restrictions across UK.
Inducing a sense of fear across the population has actually been a success out of all proportion to the needs of society, or the expectations the Government advisors who proposed it.
Governments across UK are now in a public confidence “bind” : a crisis of perception entirely due to the endless ‘guddle’ of conflicting ministerial statements which are seen in too many cases to undermine proof from science.
Members of the public who – exceeding expectations – took such advice at face value, have now suffered from it for a year now. They appear extremely reluctant to emerge from lock down and now will ignore advice.. Others who never believed what they were told and failed to comply with edicts have served to keep national statistics far higher. This imbalance of compliance, so accidentally set on track 12 months ago will continue indefinitely. This impacts on us all.
The conclusions reached by Gordon Rayner in last Saturday’s article are well argued.
Oh dear.
https://www.bbc.co.uk/news/uk-scotland-glasgow-west-56661199
Great to see that the police don’t appear to have charged this man with culpable and reckless conduct in this case, despite needing to be rescued. Do you ever consider the other side of the restrictions? Let’s say the man was getting increasingly distressed at being confined to his area, was heading towards a mental breakdown or his relationships with the people he was living were getting increasingly fraught (domestic violence and adult protection cases have gone through the roof in the last few months), seen from that perspective going to an island on Loch Lomond was an eminently sensible thing to do. The problem is not people like this, its the unjust and discriminatory rules the Scottish Government has imposed on outdoor recreation.
A strange story. One would have thought this person would have been keen to avoid involving the police, when all he had to do was get across the narrow Inchtavannach Channel without his paddle to get back to his car. If he couldn’t find a suitable bit of driftwood, hands would have done, its not far at all. Or asked for help, my understanding is that the Loch was busy at the weekend, maybe he thought nearby boaters were the ones who stole his paddle?
I wonder if he actually called to report the theft expecting the police to take it seriously, maybe where he lives that would be reasonable?
Oh look plenty more “oh dears”
Well let us hope that there is an acceptable level control of the virus.
https://www.bbc.co.uk/news/uk-scotland-57267049
BBC cherry picking the stupidest examples they can find out of all the reports to spin the story in a particular direction chosen by someone unidentified. It’s what they do, but it’s not news.
Actually I thought the numbers of potential covid spreaders, or exceptionalists, dafties or whatever we wish to call them is news.
Or do some wish to hide that, Niall?
Seem to have hit some sort of maximum reply depth, this is a reply to the post below.
I see that you agree with the BBC approach, but what is really news is ordinary people being enthusiastically prosecuted for carrying out perfectly ordinary activities which have effectively no actual risk of spreading anything, to support the now known policy of keeping the population in a high state of fear and alarm because some behavioural psychologists decided it was beneficial (or just took the opportunity to test some theories on real people).
For below read above.
Yeah I feel sorry for the kayaker, all seems fairly safe and sensible, hard to see how it should be news worthy. I would be a bit suspicious about what happened to his paddle, hopefully it was not taken by someone deliberately and was down to forgetfulness or poor judgement on his part. He might well have also been confused by different travel regulations between Scotland and England, case numbers don’t really matter now as hospital admissions continue to drop, but if people do want to give him stick, would only be because he travelled from England that has lower rate of infection than Scotland, hence theoretical putting people in England at risk, but risk involved is currently non existent, now all the most vulnerable have been vaccinated and majority of over 50s
Good news, you can go all over the country again.
I guess you will see the hills have not moved, the streams remain and well with the rush of folk to the great outdoors there will naturally be poorly parked cars and rubbish all over the place.
Respect.
Matters for the Police, but after a hard year prosecuting people for walking in the countryside I suspect they suddenly “don’t have the resources” again.
This wonderful concession amounts to allowing us to go more than 5 miles outside our arbitrary local authority boundary. Camping is still banned despite no evidence that it has ever or could be a significant source of infection. When pubs are finally allowed to open it is to be with a vast array of random restrictions designed to make the experience as unattractive as possible.
It is hard to avoid the conclusion that these activities are targeted as visible evidence of “something being done” by the behavioural psychologists who are behind them because they are activities they themselves would never do.
Going past here there is a tortuous single track road that runs about 1.5 miles further down, to a small community nestling around some popular rocky beaches. Through lock-down there has been almost no traffic, except for locals and a few workers on a new build. During almost 12 months of regular afternoon walks there and back,and through the winter die back of vegetation it has been possible to see again every piece of litter along the roadside , both ancient and modern. Walk after walk, week after week, the retrieval of every visible bit of it has taken place . All cleared up,now, first time in decades ? All brought back for disposal in our bin here. Also, probably for the first time in the memory of most who will come here, the high watermark on those beaches is now virtually devoid of bits of plastic flotsam and tins. How long for? Sadly after Friday…the answer to this will surely evidence itself all too soon. (How magnificent to be proved wrong ? .)