Madam, - The Irish Times deserves praise for its attempts to provide a forum for a clear and reasoned debate on the question of access to land for recreational use. Unfortunately, some of the contributions - including, I regret to say, your Editorial of June 26th - have tended to dwell unduly on the emotional aspects of the question rather than on the facts of the matter and the pertinent laws. We all, surely, agree on one aspect: this matter will be decided in strict accordance with law, whether existing or new legislation.
The Editorial, to a small but important degree, misquoted Mr Justice Seán O'Leary's judgment delivered on June 19th in Wicklow Courthouse. It is perfectly true that Judge O'Leary said the Oireachtas could legislate to provide facilities for walkers, but he also emphasised that such legislation must be within the rights granted to private property in Bunracht Na hÉireann. The Constitution, rightly in our view, sets down inalienable rights to private property. These rights protect all of us, from the householders of Ballsbridge to a farmer with commonage rights to the hills around Belmullet.
Under existing law, there simply is no right to roam. As the old adage (correctly) has it, "a right of way is not a right to stray". The law in this respect has been set down in the most definitive fashion by the High Court (Smeltzer v Fingal County Council). Furthermore, in August 2003, the Attorney General's office informed an advisory group on rural and agricultural tourism that the State cannot compulsorily purchase private property for recreational use. Any such attempt, in the opinion of the Attorney General's Office, would have constitutional implications.
Mr Justice O'Leary's judgment, then, was no more than a restatement of the law concerning public rights of way. A public right of way either exists, or it does not. And that existence, or not, is to be judged on the basis of the facts of individual cases assessed in the context of established legal principles. No serious party to the debate now taking place can dispute this understanding of the law in question. As was pointed out in the relevant judgment, reliance on public rights of way is unlikely to lead to a satisfactory overall solution.
Neither, in our opinion, will legislation that attempts to create new rights to access and roam over land that is privately owned. Any such attempt is certain to prove socially divisive and could well be deemed to be constitutionally flawed.
We believe, however, that progress is eminently possible if certain realities are recognised. ICMSA believes that clarification of the law by way of new legislation is essential to realising that progress. The most important aspect will be the provision of a statutory guarantee to landowners stating that where landowners have allowed access to their land for recreational use their property rights will not be diluted in any way - either now or at any time in the future. We have made detailed proposals to the Government on this matter as recently as the partnership negotiations of some weeks ago.
Specifically, we have proposed that access for recreational use be on the basis of "bare licence", ensuring that persons gaining access to land for recreation can never establish any property rights over the land. While we do not underestimate the complexity of any change in land law, this relatively simple procedure would remove - at a stroke - one of the greatest concerns of landowners: the possible dilution of their own property rights.
With the protection of this statutory assurance in place, farmers and landowners could individually decide whether or not to grant access, and on what basis. Moreover, it must be borne in mind that permission to access the land could be withdrawn at any stage.
In the same vein as Justice O'Leary, the Oireachtas Committee on the Constitution concluded that no constitutional amendment was necessary to secure a balanced solution through legislation.
In the view of ICMSA, a "bare licence" approach can deliver a solution. Surely the vast majority of recreational users seek access, not property rights? Protecting the property rights of the landowners is the surest way of gaining, retaining and enjoying access for recreational use.
Finally, the ICMSA recognises that the issues of compensation and public liability are matters that will require further consideration. We do not pretend that they are irrelevant, but we argue that they are manifestly secondary compared to the matters surrounding the right to, and of, private property itself. - Yours, etc,
CIARÁN DOLAN, Secretary General, ICMSA, John Feely House, Dublin Road, Limerick.