The access implications of legal restrictions on the right to travel

November 11, 2020 Nick Kempe 10 comments

I was pleased to have this letter published in the Herald on Monday.  While Nicola Sturgeon didn’t introduce legal restrictions on travel yesterday, she made it clear that her government is working on them  (see here): 

These will remain in guidance over the next week but we continue to prepare the regulations, and resolve the practical issues, that would be required to put them into law.

We will not hesitate to do that if we think that is necessary.

However, I appeal to people across the country, please abide by these travel restrictions now so that it doesn’t become necessary.

The threat is quite clear, so what is the current advice and does it make sense?

The Scottish Government’s position on outdoor recreation

At present taking exercise outdoors is one of the “limited exceptions” (actually there is a long list) to the guidance not to travel out of tier 3 or tier 4 areas (see here) :

There are two points to note about this advice and both have major implications.

The first is that travelling for outdoor recreation, unless this is in the form of outdoor exercise, is not on the list.  Effectively, despite the large increase of mental health problems caused by lockdown and the well known importance of green space for people’s mental health, once again people are being told that you cannot travel to a green space of your choice.  This means the Scottish Government’s  advice to much of Scotland’s population is that we should not be exercising many of our theoretical access rights, like the right to sit on a beach or enjoy the sea.  Also that other activities included under access rights, such as to watch birds or animals and take photographs or draw the landscape, should only be done if you can do this from your front door.  It seems the Scottish Government has learned nothing about the importance of outdoor recreation more generally since the March lockdown.

The second concern is the advice that outdoor exercise should be kept local.  In the eight months since the first lockdown, Government advice  appears to have shifted from saying that you can exercise from your front door to you can travel 5 miles to start taking exercise.  What this means for those of use who live in Glasgow is that we are being advised we can take exercise in other densely populated urban areas like Motherwell, Hamilton, Newton Mearns, Barrhead or Paisley (there is a bit more countryside on the north side of the city) but not in the countryside beyond.

The prospect of the Scottish Government enshrining this in law makes no sense and is chilling from a human rights perspective.  It cannot be repeated too many times, all the evidence shows that the likelihood of Covid-19 being transmitted outdoors, so long as people keep apart, is very low.

If you have not read them, I would commend the update Mountaineering Scotland issued to members a few weeks ago (see here) and the paper they referred to on mountaineering and the risks of spreading Covid-19 (see here).  Both are relevant to all forms of outdoor recreation.

Yes, there is a theoretical risk that people who travel to enjoy the countryside might have asymptomatic Covid and unwittingly spread this by touching gates, using a public toilet or spreading aerosols containing the virus more than two metres when they are out of breath.  But there is no evidence that any of these scenarios have played any part in the steep rise in covid-19 cases since the release of lockdown.  Indeed, despite all the fears about crowded beaches and beauty spots over the summer, it was ONLY when people started mixing indoors again that the second wave of Covid took off. The physical and mental health consequences of stopping people travelling for outdoor recreation – and to repeat not every vulnerable person feels safe exercising close to where they live – vastly outweigh the risks of outdoor recreation  spreading Covid-19.

The starting point for the Scottish Government therefore should be that whatever the extent of the virus among the population – and I don’t deny it is very dangerous and needs tackling – people should have a right to travel for outdoor recreation, as long as the travel can be undertaken safely.  That baseline should include the right of people to go camping and campervanning, as those activities don’t require people to use indoor spaces used by others.

Visitor infrastructure and outdoor recreation

I do, however, believe the Scottish Government could also safely allow people who want to go out into the countryside to access some indoor spaces that support outdoor recreation, from public toilets to accommodation where people can be self-contained, from glamping pods to second homes.  I spent a week in a self-catering cottage in Lochcarron at the end of October.  On the hill, we hardly saw anyone all week – fewer than I pass walking to the end of my street in Glasgow – while our only contact with locals was filling up with petrol and patronising the village shop.  The safety precautions the Spar had put into place were fantastic and the likelihood of virus transmission miniscule as a result.  But if local people had been concerned about us using the shop we could have come completely sufficient.

Unfortunately, the Scottish Government’s current position on visiting the Highlands – a tier 1 area with the least restrictions – is completely muddled.  While more businesses can stay open than in the central belt, the advice on travel, if observed, would mean that almost no-one would be able to patronise them.    Self-catering remains open but only to other people from the Highlands and Islands.  The vast majority of tourists come from the central belt or, dare I say it, England. This threatened to bankrupt lots of local tourism businesses and probably partly explains why the Scottish Government threatened to place the whole of Scotland into lockdown again, so that rural businesses left high and dry could access furlough monies.

There must be a better way of working out what tourist infrastructure could safely be left open to support outdoor recreation, based on science.  This would provide much needed relief to people cooped up in urban areas and help reduce the current pressures faced by local businesses.

The current position in the Loch Lomond and Trossachs National Park

I have been pleasantly surprised by the Loch Lomond and Trossachs National Park Authority’s most recent advice to visitors (see here), issued in  response to the advice from the Scottish Government.  They are no longer advising people to keep away the National Park, as they did during the first lockdown.  Instead, they are advising people to think before visiting and, as advocated on parkswatch, have given people ideas of alternatives to crowded beauty spots.  They could have given even more options if there were better visitor facilities, including a better core path network, in the National Park.

The LLTNPA aren’t even trying to discourage people from overnight visits camping:

“While the Camping Management Byelaws have finished for 2020 and you do not need a permit to wild camp until March 2021, please plan your visit in advance and read our guidelines on how to camp responsibly.”

All this is extremely welcome, exactly what our National Park Authorities should be doing.

A map within their guidance nicely illustrates the senselessness of the current Scottish Government advice on travel:

According to the Scottish Government’s advice, if you live in crowded West Dunbartonshire, you should go further down the west shore of Loch Lomond than Luss, but if you live in Luss it’s ok to travel wherever you want in Argyll and Bute.  It should be obvious by now that the risks of the virus being spread by anyone walking up the Cobbler are minimal, even if they do call on the rescue, and it really doesn’t matter where they come from.  I do have some sympathy,therefore, for LLTNPA officials who need to be seen to be following the Scottish Government line.

However, while the LLTNPA’s advice is now better than it was, unfortunately no lessons appear to have been learned when it comes to visitor infrastructure.  For example, a quick check on what toilets remain open around Loch Lomond  shows (see here):

  • Rowardennan, closed for the winter
  • Milarochy Bay, only open 9-4pm weekends
  • Balmaha, closed (still)
  • Firkin Point, closed
  • Tarbet and Inveruglas, 9-4pm

From a hillwalking and mountaineering perspective or for people travelling distances for purposes clearly allowed in the advice, this is useful .  Even where toilets are open, on short winter days mountaineers are likely to be on the hill before 9am and lots of people travel in the dark.

The Scottish Government’s advice, unfortunately, provides the LLTNPA and organisations like it every excuse they need to close facilities and save money.

What needs to happen

It is long past time that the Scottish Government stopped paying lipservice to outdoor recreation and started to promote it as something that everyone could safely do during this dreadful pandemic, whether or not it involves travel.

The prospect of legal restrictions, which would make it a crime to travel to go for a walk, are chilling.  Luckily, I believe they are unworkable.  How could the police ever check where a person was from and where they were going?  The cost of putting up roadblocks five miles behind every crossing point into a local authority area, or even on their borders, would be phenomenal.  It would be far more sensible for the Scottish Government to concentrate its efforts on ensuring that when people travel, they don’t put people at risk when they get to their destination.

Asking the police to check on people parked in rural laybys or at popular starting points for outdoor recreation is completely disproportionate and a diversion from the real problems.  I hope the Scottish Government think very carefully before trying to restrict travel by law but if they press ahead regardless with measures that restrict people’s ability to enjoy the countryside, I think people will need to start protesting.

10 Comments on “The access implications of legal restrictions on the right to travel

  1. All this reminds me of Foot and Mouth Disease. During the FMD outbreak in 2001 all traffic going north on the A9 was diverted into a layby near Dalwhinnie so that vehicles could drive through a straw covered disinfectant bath before entering the Highlands. The diversion caused some traffic delays. I contacted Ministry of Agriculture headquarters in London and asked the senior veterinary officer in charge of FMD control if this disinfectant bath for all traffic was necessary. The answer was “No, such precautions are only necessary at the entrance and exit to farmyards. What you have on the A9 is simply a gesture by politicians to make the public think they are in control of the disease. It has no practical value”. The lesson is clear – trust the science, not the politicians, and lets get out of doors, across all of Scotland, but keep to the three strict requirements that really matter – 2 metre physical separation, hand washing and wearing masks if you have to step indoors with others present.

  2. I couldn’t agree more. It’s the same story as in Westminster: if you have as a governing body a bunch of representatives from the urban or metropolitan establishment, there is a fair chance that they firstly don’t understand “exercise” in the way that some of us might, and that secondly that they might not exercise at all. The sight of Boris Johnson and Michael Gove in their shorts is sufficient evidence, and I haven’t yet seen the Scottish FM engaging in a jog up Arthur’s Seat.
    Furthermore, as far as I am aware, absolutely no initiatives have been put forward to support the advantages of fitness in combatting C-19, let alone the clear value of a proper dose of vitamin D, and the consequent value to the support of the nation’s mental health. It feels to me that we are yet to reap the whirlwind of a lack of balance. I recently wrote to my MSP Gail Ross who replied, “The Scottish Government is in an unprecedented situation and is trying to balance the harms of the virus with the harms to the economy and other health issues.” The problem comes with a misunderstanding of what “exercise” actually means, and where “other health issues” are relegated to a final syntactical catch-all. Not good enough by a country mile.
    So an argument for shifting the UK parliament to the north of England holds weight (Grimsby? Hull? Sheffield?) and the same might be said for Scotland: Perth, Crieff, Aberdeen? At least the countryside would be accessible and visible, and at least be part of rule makers’ consciousness. I’m not holding my breath, even with quite a decent VO2 max.

  3. If the Scottish government believes in democracy, Why do they want a leagel travel ban as well as a hate Bill. The Students and the rent collected from the Students is far far more important than letting the public seeing their loved ones in care homes .It’s 9 months now since sons and daughters have seen their parents in care homes, and now students will be aloud to travel AGAIN under a travel ban. Furlough has being used to keep the Scottish people lock down, I suspect so the first minister can keep a court case and the information from the public Scotland is in real danger of becoming a dictatorship under this Scottish Government .The tourist industry is the way forward for Scotland but it’s shut down ,the first minister is happy to keep going to England for money The English people are trying to keep their economics going putting them selfs at risk but she played politics with Scotland and England. Hotels pubs self catering can all be open and work they were until the Students were aloud black into Glasgow As for protesting when will the Scottish press start doing their job

  4. I think the Scottish Government is losing the plot by making, through the First Minister – who is becoming increasingly patronising yet providing little substantive evidence for these layers of equally confusing yet serious restrictions (Stirling is being characterised with a rather nasty spike in its overall infection rates but the whole citizenship is potentially going to take the weight of new restrictions because of a problem in a number of care homes) – and unveiled threats about enhancing ScotGov advice with the cosh of legality…as if Policescotland hasn’t enough pressure on its workforce without having to enforce the virtually unenforceable.
    Guidelines, Restrictions, local tiered lockdowns and possible laws are now so jumbled that it’s all crippling the welfare of the country.
    Sure, we must protect those most vulnerable (still it’s our Senior citizens and those with underlying health conditions who are bearing the brunt of serious outcomes from Covid infection) and those whose job it is to provide the care (although there’s a vast unsung army of unpaid volunteers doing a massive job for us too) but reality has to kick-in and the seemingly pointless closure of non-licensed cafes and restaurants by 1800hrs, the pressure to adhere to the 5 mile guidelines under the threat of it being made legal and the enforced closure of gyms, leisure centres and similar recreational facilities should be stopped now.
    In fact, they should be encouraged to stay open – many have exceptional means to look after their Covid security, our cafe and restaurant owners have spent fortunes on enabling their premises to be open yet the closure times make it financially impossible to sustain the current government led over-precaution: and all this has a downloading effect on those of us who by choice want to use the outdoor environment to recreate where the exercising of our choice becomes a target for criticism – whilst the professional outdoor industry is once again debilitated to the point of near paralysis.
    Let’s remember, our First Minister is just that however she wishes to present herself and how chummy our media portray her. So, wilst her ability to communicate and empathise is profoundly more effective than Prime Minister Johnson, we must not be blanketed from making criticism because she comes over all mummsy: she’s Nicola to her family, close friends and colleagues and those she invites to use her first name in person. Other than that she’s First Minister Sturgeon; an elected politician and must be treated as such however good she is and we mustn’t be swayed by an over-emotional response to her.
    Consequently, our views and growing opposition to how we are managed with changing restrictions and the possibility that limits to our movement are on the cards, criticising what we see, hear and are affected by must remain a very clear option.

    1. Hi Andy, I think there is valid debate to be had on restrictions to cafe and other indoor venues, both for and against, but I think its better not to bring that into arguments for allowing people to travel for outdoor recreation where there is no scientific evidence to suggest its a problem. We need therefore to separate out what is as near as safe as can be (walking, cycling, camping and campervanning) from other activities that are higher risk. There is no justification for stopping hillwalkers going for a walk near Crianlarich but there may be some justification for saying hillwalkers shouldn’t go into shops, cafes in places they visit. I think that is a separate argument. I realise I have stepped slightly beyond outdoor recreation when I have argued self-catering could be brought in, but that is because its self contained in a way that hotels, bunkhouses, etc are not. Nick

  5. Certainly during “lockdown”, which was nowhere near as severe as most other countries, there was an issue with people travelling long distances and using shops and therefore is not a separate argument. Our village was inundated with cyclists coming out of Edinburgh or well beyond “local”. We are 25 miles to the east of the city. Many of these cyclists had no day sacks or panniers to carry food and drink so were making stop offs on their day trips , probably at several convenient places. I know because I talked to some standing in a queue to get in my local CO-OP. Lots of them were doing 60-100 mile round trips that took all day and not the recommended 2 hours. The manager of the shop told me that they had never sold so many packs of sandwiches, bottles of water, and cans of high energy drinks! Now, whilst I applaud the activity and accept that transmission of C19 is minimal outdoors I have to say that doing high mileage and then going shopping was a bit reckless. Why not take your provisions with you or does a day sack and pannier spoil the look of lycra and racing bike?

    1. Jon, you won’t get many cyclists travelling 100 miles at this time of year. I can easily cycle for 5 hours on my road bike with a couple of cereal bars & water carried on my bike. No need for panniers, only use them when I cycled to work. Either way rates of Covid are low in Edinburgh. I live in the countryside west of Glasgow, I don’t have any issue with cyclists. Most are not using the cafes, as there is no room.

    2. Hi Jon, I am going to write about this in light of latest rules but the solution is quite simple within the Scottish Government’s current framework (accepting that its constantly shifting). Make it unlawful for people leaving tier 3 or tier 4 for outdoor recreation to mix with anyone who is not in their household indoors. So, while I could go to my newsagent in Glasgow it would be unlawful for me to go into a newsagent in say east Lothian or the Borders. This would allow people could go into public toilets, so long as there was no-one else in them, but no shop keeper is going to abandon their shop to let visitors wander through. It would be easy to enforce because most local shops know who is local and who is not. Those shops could though offer a takeaway service to cyclists. Ring from outside the shop, place your order and the shopkeeper delivers it outside. Shopkeepers could do this for anyone they don’t recognise. There are solutions that would enable people to exercise their rights to visit the countryside while reducing any risks of spreading the virus to very low levels, the problem is those at the very top of the Scottish Government taking all the decisions appear to have no interest in this (I talk to people lower down the tree who believe this could be far better managed but they are all powerless)

  6. Well the great dictator has made the guidance law now. It really is an outrage as Covid hospital admissions are falling. The highlands had visitors from England (where Covid was higher) all over the summer, without a spike. Population density is what protects the highlands, as well as the caution of the businesses up there. I’m not even asking to use services, just go for a hill walk. Apparently I might call MRT or break down. I have climbed over 1000 hills & never had a breakdown or been rescued by MRT. The incidence of Covid in highest areas in Scotland is about 5 per 1000. By these numbers reckon there is roughly 1 chance in 200000 that I’d need to ask for assistance. Our civil liberties are being greatly constrained & it will do little to stop the spread of this disease.

  7. JohnM
    I don’t have any issue with cyclists but I do have an issue with cyclists that travel long distance to shop! Thanks for reply though.

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