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What is the future for udal law?

There is still time for islanders to have their say on the Scottish Law Commission's discussion paper on the Law of the Foreshore and Seabed
By Richard N. M. Anderson

I was recently asked by a very perspicacious person - "exactly what relevance does udal law have for the modern islander?"

At first sight, the answer might appear to be very little - perhaps someone who could point to a udal title might have title of land down to the low-water mark and an accompanying right to take from there seaweed to put on his or her tatties, but since hardly anyone grows their own tatties these days and a bag of fertiliser is a lot less labour-intensive for those who do that would not appear to be a particularly valuable right to have (unlike the right to try any treasure found on that land).

On reflection, however, I feel that udal law might have a wider relevance to the islands. It has always been traditional, for example, for those living next to the foreshore to make a 'noost' in which to store their boat. They might also want to clear a path on the shore in order to drag their boat from the water mark to the noost. With the advent of salmon farms and the like, it has been traditional to seek the permission of the owner of the nearby foreshore to site a salmon farm in the sea off their land. The same might apply to inshore tide or wind generation stations. These rights derive from udal law as they do not exist elsewhere in Scotland.

Those rights clearly derive from land-ownership. However, I believe that udal law may have a wider application. For example, on a nice summer evening it is the custom of many islanders to take their boat off to a nearby island or walk to the top of a favourite nearby hill. Their centuries-old right to do so is, I believe, founded in udal law for it does not necessarily exist elsewhere in the law of Scotland and may exist no longer if the current 'right-to-roam' bill passes through the Scottish Parliament.

That all-embracing nature of udal law was declared by a single, much-respected judge (Lord Lee) in 1890 in a case (Bruce v Smith) which related to Shetland (but would have equal application to Orkney) as follows:

"the whole system of law in Shetland is different from the common law of Scotland except in so far as it has been assimilated by legislative enactment or gradual adoption"

Unfortunately, however, different systems of law within a single country do not carry much favour and within only some 50 years Lord Hunter (again in a case which related to Shetland but would have equal application to Orkney) felt able to turn the position on its head and opine "it is probably more accurate to say that the ordinary statute and municipal law of Scotland operates, except in so far as there is some speciality still extant in Orkney and Shetland which modifies it."

Only a Bench of three or more judges can decide which of the views of these two individual judges is the correct view.

So far as those "modifications" are concerned, as recently as 1903 udal law was given a ringing endorsement in the case of Smith v Lerwick Harbour Trustees, but in 1963 udal law took a 'hit' in the case relating to the St Ninian's Isle treasure and in 1990 it took another hit in the Shetland salmon farmer's case. What is, perhaps, significant about these latter two cases is the two of the foremost academic legal scholars in Scotland (Lord Birsay in the former case, Professor W. M. Gordon in the latter case) have suggested that those cases were wrongly decided. Right or wrong, however, as things stand they represent a serious erosion or 'modification' of udal law in Orkney and Shetland.

And so we come to the present position.

In 1999 the Scottish Executive (taking into account the land reform action plan) asked the Scottish Law Commission to consider the existing law of the foreshore and seabed and to advise on possible reforms "with a view to improving clarity and consistency." The Scottish Law Commission, in Discussion Paper No 113, have produced a very fair analysis of the law, including udal law, relating to the foreshore and seabed. Comments on the discussion paper (part of the democratic process) are sought by the Law Commission.

In particular, the following questions are asked by the Law Commission:

Question 7 (a): Do you agree that there are no significant grounds for the creation of a general statutory right to gather seaweed in favour of crofters?

Question 7 (b): Do you agree that any pertintial right to gather seaweed should be restricted to what is required for the purposes of the croft and that in the interests of clarity there should be a statutory statement to this effect?

These questions clearly relate to the minor issue of seaweed and are really matters for crofters to consider. Some believe in removing seaweed to 'tidy up' beaches. Others believe seaweed on the beach is essential to the continued existence of some types of animal life on the beach. The question of seaweed might very well be an environmental matter. However, other questions are of a wider ambit such as:

Question 8 (a): In the interests of clarity and consistency, should legislation make clear that a pre-existing udal title to the foreshore in Orkney and Shetland would defeat a subsequent grant of the property by the Crown?

Question 8 (b): Do you agree with our proposal that separate ancillary pertinent rights should not be recognised under udal law?

Perhaps of even greater significance, however, is the proposal that common law rights (and udal law) be abolished altogether and replaced by a single statutory code applying to the whole of Scotland as perhaps is reflected in the following questions:

Question 5 (a): Should the public rights in respect of the sea, seabed and foreshore be put on a statutory basis and the common law rights abolished?

Question 5 (b): If so, should they be subject to regulation similar to that proposed for statutory access rights in the Land Reform (Scotland) Bill?

Not to put too fine a point on it, if these questions are answered in such a way that udal law takes another 'hit' then that would almost certainly spell the end of udal law in Orkney and Shetland.

"Happy," some say, "is the land that has no history" but in their udal traditions Orkney and Shetland have a very proud history which some would be sorry to see go.

The answer is, democratically, in your hands and any comments should be sent to Mrs Judith A. Morrison, Scottish Law Commission, 140 Causewayside, Edinburgh, EH9 1PR by July 31, 2001.
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