16 August 2024

Reforming access rights for railway level crossings is a potential win-win for outdoor recreation and for re-setting devolution, says Ramblers Scotland director Brendan Paddy. 

The Scottish Government has this summer written to local access authorities, directing them to review any ‘core paths’ that cross railways at private level crossings.  

The unexpected move could result in much loved paths being removed and others in the pipeline being stopped, despite core paths being a feature of Scottish law for two decades  

But it’s about more than paths. It’s in the context of increasing friction in the Scottish devolution settlement in the last three years. So I believe there is an opportunity for Holyrood and Westminster to work together to fix this problem.  

That is why Ramblers Scotland has joined with like-minded organisations to write to ministers within both governments, urging them to work together to reform access rights at level crossings, for everyone’s benefit.  

 

Scotland’s private level crossings 

There are more than 400 level crossings in Scotland, of which most are ‘private’. That’s where the railway crosses privately-owned paths, tracks or roads rather than public roads.  

Many of Scotland's level crossings are used by walkers, cyclists and others during days out, including on some very popular routes. Paths over the crossings can be decades old, sometimes even pre-dating the railways. 

The rail industry doesn't tend to like level crossings and views them as a safety risk. In fact, it has closed more than 1,300 crossings in Britain since 2009. Through Freedom of Information requests, we’ve forced Network Rail to show that no pedestrians died using Scotland’s private level crossings in the five years to 2023. 

We believe that blocking access, without alternatives, runs the much higher risk of people crossing at random times and locations.  

 

The issue with core paths 

Since Scotland passed the Land Reform (Scotland) Act 2003, councils have had a duty to designate and map their core paths. These tend to be more popular paths that join places or create a network. NatureScot hosts them on an online map, and they are among the many paths on our Scottish Paths Map.  

Core paths can bring access rights to land that is otherwise exempt. For example, Scottish access rights do not give a right to stroll along a railway - for good reason. But core path designation has, until now, protected passage over a level crossing.  

It's estimated that at least 10 current core paths use private level crossings, and further such core paths are proposed: for example, by Highland Council. Meanwhile, other private level crossings are recorded Rights of Way, while others may have access rights at either side but no special designation for the crossing itself. 

It's a confusing situation for the public.  

 

The removal of core paths 

Sadly, the situation has just become even messier, due to a recent letter from the Scottish Government to councils and national parks.  

The Scottish Government now apparently believes that core paths across private level crossings are no longer legitimate and must be reviewed. 

Rather than being prompted by new evidence or policy changes, this has happened because aspects of railway law are reserved to the UK Government. The Scottish Parliament, it is argued, cannot therefore legislate on them.  

So even the safest core path over a level crossing is affected.  

 

Why has this come about now?  

One factor is the increasing challenge by Network Rail to long-established paths. Perhaps the best-known case is at Dalwhinnie just off the A9. This is not a core path but for three years a long-used track crossing the railway has been blocked by Network Rail, despite it being recorded as a public right of way.  

At the same time, Network Rail has been challenging attempts by access authorities to designate new core paths across the railway, including via bridges. 

As director of Ramblers Scotland my focus is on making it easy for people to walk in the outdoors but it’s hard not to notice a wider context for the devolution settlement, with increasing friction between UK and Scottish Governments on the limits of powers. The UK Internal Market Act and the deposit return scheme and blocking of Scottish Parliament Bills are cases in point.  

We are a long way from the relatively collegiate approach of 2003 when the first Land Reform (Scotland) Act established core paths. 

 

What does it mean in practice?

The paths will still be there. Gates, signs or lights will remain in place to help people cross safely.  

However, removing the protection of being a core path means that Network Rail could decide to close a level crossing more easily. Any proposals to designate new core paths on level crossings would be dead in the water.  

Over time, paths that have been walked for decades may be cut off and some areas of Scotland may become much harder to reach.  

Worryingly, for the first time since access rights were set in law in 2003, walkers could be subject to trespass charges for seeking to use a level crossing. 

 

How can we solve the issue? 

It needs to be re-emphasised that this blanket change is not a result of policy. It's simply a by-product of the changing interpretation of the way devolution impacts on transport and access.  

A policy-based approach would not take such a blanket approach. Instead, it would allow access authorities to designate core paths over railway crossings, as originally intended by Holyrood, with the pros and cons of each case weighed individually. 

So, how do we get to that evidence-based world? We have a new UK Government. It's a government which has said that it wants to reset the fragile relationship between Westminster and devolved nations.  

The Scottish Government has responded positively to that message. That is why the main organisations concerned about access have written to lead ministers in both governments urging them to take action. 

Resolving the argument about core paths over level crossings is a niche issue, of course, but it's exactly the kind of small step that translates warm words into real actions.  
 
Our governments have the chance to create a win-win for walkers, cyclists, runners, climbers and others - and to show a new grown-up approach to devolution. Such opportunities do not present themselves very often.