The Acts of Union 1707 joined the Kingdom of England (including Wales) and the Kingdom of Scotland into the Kingdom of Great Britain. However, both kingdoms retained their own legal systems which have several differences. Here are three areas which have personally affected me where Scots Law seems better.

Right to Roam

If you want to go on a walk or a cycle ride over English and Welsh countryside, you need to follow the rights of way network. The rights of way network is a system of public paths (footpaths, bridleways, restricted byways, and byways open to all traffic) that allow the public to cross private land. In context, half of the land in England is owned by just 25,000 landowners.

The network is confusing and poor in many areas of the country. My walkability project aimed to map the best and worse areas. Even where paths exist, they can be badly maintained, with overgrown vegetation, broken stiles/gates, and missing signage. Councils frequently lack the resources to enforce access rights or clear obstructions.

The Countryside and Rights of Way Act 2000 was the last major expansion of public access rights in England and Wales. It granted access on foot only to specific categories of land (mountain, moor, heath, and registered common land) that make up about 8% of the country.

Contrast the situation in Scotland, which has a broad right to roam. The Land Reform (Scotland) Act 2003 created a right of responsible access to almost all land. Essentially it defines the few places where you can’t go, rather than a few places where you can. The act includes cyclists and horse riders, who are limited to bridleways in England and Wales, and wild camping is also permitted in Scotland.

The core duty is mutual “responsible” conduct governed by the Scottish Outdoor Access Code. While this can lead to landowner disputes, I see the Scottish model as a far better balance between public enjoyment and landowners’ interests.

Leasehold

Flats make up about 21% of homes in England, including around half of homes in London. The vast majority of these are owned as leasehold, a quasi-feudal system which shocks people from other countries.

Under leasehold, even if you buy a flat, you only own the right to live there for a fixed term (say 99 years), not the land it sits on. The land is owned by a freeholder who can earn money from the leaseholder in various ways while offering little in return. These include ground rent; kickbacks on the buildings insurance; high administrative fees for routine documents; and a managing company that levies excessive service charges. The charges may escalate to the point of making the flat unmortgageable.

Once a lease drops below 80 years it becomes expensive to extend (tens of thousands of £) due to an obscure calculation called “marriage value”, and if it drops to 0 years the flat is forfeited to the freeholder entirely.

Multiple governments have been trying to reform leasehold and I have been eagerly following the news, but reforms have been disappointingly slow. Currently, progress is stalled by an appeal by large freeholders who have invoked the European Convention on Human Rights - they say their right to peaceful enjoyment of possessions would be infringed upon.

Largely due to leasehold, flats have fallen out of favour in England and Wales. Most friends my age are preferring to rent for longer and save up for houses further out. This is a real issue with the ongoing housing crisis. People are deterred from buying the densest and best-connected type of property, and are pushed towards sprawling housing developments.

Meanwhile, Scotland abolished the feudal system of land tenure through the Abolition of Feudal Tenure etc. (Scotland) Act 2000, so almost all residential property is held outright as ownership. Shared parts and maintenance obligations are set by title deeds and the Tenements (Scotland) Act 2004 without a superior landlord. There can certainly still be shared-ownership disputes, such as who will pay for a repair. But getting rid of leasehold eliminates a huge conflict of interest and is a drastically fairer system.

Strict Liability

Imagine you are running along a canal. Suddenly, a large dog charges at you and knocks you over, breaking your ankle. You sue the keeper (not necessarily the owner but whoever is looking after the dog) for negligence.

In England and Wales, you are likely to lose in court, as in the case of Whippey v Jones (2009). I’m no lawyer, but even among lawyers the Animals Act 1971 is known for having extremely convoluted wording. Unless the dog keeper had a reason to foresee a real risk caused by their animal and was known not to have done anything about it, you will have a hard time proving negligence.

It feels disempowering that you could be injured by somebody’s out of control animal in England and Wales and have no recourse. There have been several attempts at legislative reform which have stalled mainly because it’s not considered a priority issue.

The Animals (Scotland) Act 1987 saw the problems with the 1971 Act and enacted a cleaner strict liability scheme. It imposes liability on the keeper where the animal is a species which may severely injure, kill, or spread disease, and the injury results from that. So if a dog bites a walker, the keeper is generally strictly liable without the claimant having to prove “abnormal characteristics known to the keeper” of the England and Wales 1971 Act.

Conclusion

In each case, Scotland looked at a dated system with clear problems and chose to drastically update it. The changes favour the ordinary person over entrenched interests… if only there was more sunshine up there!