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Access to the countryside: the tragedy of the house of commons

Published online by Cambridge University Press:  02 January 2018

Ben Mayfield
Ben Mayfield*
Affiliation:
Lancaster University Law School
*
Ben Mayfield, Lancaster University Law School, Bowland North, Lancaster University, LA1 4YN, UK. Email: [email protected]
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Abstract

The Countryside and Rights of Way Act 2000 (the CRoW Act) serves as an example of the way in which ideology can frequently become a casualty of realpolitik. Wider access to the countryside was a pillar of Labour Party general election manifestos from the 1950s until the introduction of the CRoW Act. This article examines the antecedents and emergence of this statute to determine whether the eventual form of the rights of access under the CRoW Act represent a missed opportunity to grant public rights over private land.

Type
Research Article
Information
Legal Studies , Volume 37 , Issue 2 , June 2017 , pp. 343 - 362
Copyright
Copyright © Society of Legal Scholars 2017

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References

1. Countryside and Rights of Way Act 2000 s 2.

2. See, for example: B Ackerman ‘The rise of world constitutionalism’ (1997) 83 Virginia Law Review 771.

3. See n 44 below. See also B Mayfield ‘Access to land’ (2010) 31 Statute Law Review 63.

4. National Parks and Access to the Countryside Act 1949.

5. HC Deb 20 March 2000 c 720.

6. Ibid.

7. Access to Mountains (Scotland) HC Bill (1883/84) [47 Vict].

8. Access to the Countryside HC Bill (1997/98) [54].

9. Labour Party New Labour: Because Britain Deserves Better (London: The Labour Party, 1996), p 10 Google Scholar.

10. Ibid, p 3.

11. See n 1 above, s 81.

12. See n 5 above, c 767.

13. See, for example, Waldron, J The Right to Private Property (Oxford: Clarendon, 1990) ch 2CrossRefGoogle Scholar.

14. The Diggers, or ‘true Levellers’, proposed a radical solution to the inequality of property ownership. Their 1649 occupation of St George's Hill in Weybridge was an active element in the campaign to redistribute property and property rights. The Diggers campaigned for the equal distribution of land, for industry, agriculture and forestry to operate communally and for rents to be abolished. The Digger movement was quashed almost as soon as it had begun, though the message of their campaigns would have made seventeenth and eighteenth century landowners uneasy. See, for example: Alylmer, G ‘The Diggers in their own time’, in Bradstock, A (ed) Winstanley and the Diggers 1649–1999 (London: Cass, 2000), p 8 Google Scholar. See also n 29 on the Kinder Scout Mass Trespass.

15. Report from the Select Committee on Public Walks HC (1832-33) 448.

16. Wohl, A Endangered Lives: Public Health in Victorian Britain (Cambridge: Cambridge University Press, 1983) p 119 Google Scholar.

17. Ibid.

18. See n 15 above.

19. Ibid, p 8.

20. Ibid.

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22. Public Walks and Institutions HC Bill (1836-37) 7 Will IV.

23. HC Deb 4 May 1836 c 609.

24. HC Deb 14 July 1835 c 577.

25. ‘The question “What is a Chartist” answered’: Tract issued by the Finsbury Tract Society, 1839 in n 21 above, p 89.

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28. Ibid. Specifically, this land was enclosed through the Inclosure Act 1848. These enclosures of common land had begun in the fifteenth century, and in some areas were to continue until the early twentieth century.

29. Stephenson, above n 27, p 154.

30. See, for example: Offer, A Property and Politics 1870–1914, Landownership, Law, Ideology and Urban Development in England (Cambridge: Cambridge University Press, 1981) p 2 Google Scholar.

31. (1865) LR1 QB1.

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33. [1895] AC 587. For an excellent analysis of this case see: Taggart, M Private Property and Abuse of Rights in Victorian England (Oxford: Oxford University Press, 2002)CrossRefGoogle Scholar.

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35. Ibid, p 3.

36. An alternative reading of this case can be found in D Campbell, ‘Gathering the water: abuse of rights after the recognition of government failure’, (2010) J. Juris, 487.

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38. (1857) 119 E.R. 1390.

39. For further discussion on the illusory nature of ownership, and of re Penny and the South Eastern Railway Co., see: K Gray ‘Property in thin air’ (1991) 50 CLJ 252–307.

40. See n 58 below.

41. Atiyah, PS The Rise and Fall of Freedom of Contract (Oxford University Press: Oxford, 1979) p 225 Google Scholar.

42. Ibid, p 226.

43. See n 7 above.

44. HC Deb 15 May 1908, c 1440.

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47. For the history and consequences of this, see: Flanagan, T et al., (eds) Beyond the Indian Act, Restoring Aboriginal Property Rights (Montreal, McGill-Queen's University Press, 2nd edn, 2011)Google Scholar.

48. See n 44 above. The exclusion of the Scottish people from the land was a particularly contentious issue following the Highland clearances of the late eighteenth century, which were not quickly forgotten. During this period many highland crofters were cleared from the land to make way for sheep farming. Disputes over clearances and land rights were to escalate to the burning of crofts and the use of violence against those who resisted. See Prebble, J The Highland Clearances (London, Penguin, 1969) p 49 Google Scholar.

49. Ibid,.

50. Ibid.

51. Ibid.

52. See n 7 above.

53. Ibid. For details on the current campaign by the British Canoe Union see http://www.riversaccess.org.

54. Stephenson, above n 27, p 165.

55. See n 4 above.

56. See, for example: J Mair and J Delafons ‘The policy origins of Britain's national parks: The Addison Committee 1929–31’, (2001), 16, Planning Perspectives, 307.

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58. Johnson, W, Public Parks on Private Land in England and Wales (Baltimore, MD: Johns Hopkins Press, 1971) p 22 Google Scholar.

59. HL Deb 18 October 1949 c 878.

60. Ibid.

61. See n. 12 above.

62. See n 59 above.

63. Ibid.

64. Ibid.

65. Ibid.

66. Ibid.

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68. See, for example: Radin, M Reinterpreting Property (Chicago, IL: University of Chicago Press, 1993)Google Scholar.

69. Some culturally significant features of the environment have even been recognised with separate legal personality. The potential of such agreements to transcend any model of property theory based on ownership is beyond the scope of this article. See, for example, the Whanganui River agreement in New Zealand: https://www.govt.nz/organisations/office-of-treaty-settlements.

70. Report of the Royal Commission on Common Land, HC (1958), p. 403. The recommendations of this Commission led to the introduction of the Commons Registration Act 1965, which provided new rules for the registration of commons as well as town and village greens.

71. Report of the Common Land Forum, HC (1986) p 9.

72. Ibid.

73. The latter was renamed the Country Land and Business Association in 2001.

74. See n 71 above, p 10.

75. Ibid.

76. Ibid.

77. Ibid.

78. Ibid.

79. Ibid.

80. Ibid.

81. C Barclay, Research Paper 99/23, ‘Right to Roam Bill’, (London: House of Commons Library, 1999) p 23.

82. Ibid.

83. Ibid.

84. Specifically, in the following manifestos:Labour Party Let Us Win Through Together (The Labour Party: London, 1950); Labour Party Britain Belongs to You (The Labour Party: London, 1959); Labour Party The New Britain (The Labour Party: London, 1964). Labour Party Time for Decision (The Labour Party: London, 1966); Labour Party Now Britain’s Strong – Let’s Make it Great to Live In (The Labour Party: London, 1970); Labour Party The New Hope for Britain (The Labour Party: London, 1983); Labour Party Britain will Win with Labour (The Labour Party: London, 1987); Labour Party Itˈs Time to get Britain Working Again (The Labour Party: London, 1992); Labour Party New Labour because Britain Deserves Better (The Labour Party: London, 1997).

85. Ibid, Labour Party New Labour because Britain Deserves Better p 30.

86. Ibid.

87. T Blair (1998), ‘The Third Way: New Politics for the New Century’, Fabian Society, London.

88. Ibid, p. 7.

89. Fairclough, N New Labour, New Language? (London: Routledge, 2000) p 44 Google Scholar.

90. Ibid, p 10.

91. S 86 (1).

92. ‘Report of the National Park Policies Review Committee’ (London: HMSO, 1974).

93. P Burnham, ‘New Labour and pepoliticisation’ (2001) 3, 2, British Journal of Politics and International Relations 127 p 136.

94. Ibid, p 144.

95. n 86 Labour Party (1997). The promise of a balanced right of access is a pervasive theme, and reflects those elements of ‘Third Way’ politics that aim to provide legislation that can balance competing rights.

96. Conservative Party, (1997) You Can Only be Sure With the Conservatives (Conservative Central Office: London) p. 42.

97. Ibid, p 41.

98. See n 8.

99. see Shoard n 45, p 278.

100. E Ares and G Allen (2000), Research Paper 00/31, ‘The Countryside and Rights of Way Bill: Access and Rights of Way’, House of Commons Library, London.

101. Ibid, p 14.

102. Ibid.

103. Right to Roam HC Bill (1998–99) [16].

104. See n 8.

105. See Ares and Allen above, n 102, p.15.

106. Ibid.

107. Ibid.

108. Ibid, p 16.

109. Ibid.

110. HC Deb 26 March 1999 c 700 in ibid p.17.

111. Ibid.

112. Ibid, p 16.

113. Ibid.

114. Ibid.

115. See n 5 above, c 740.

116. Ibid. Bennett's language during this debate is similar to that of Marion Shoard, and her argument that the exclusion of the people from the land began with the Norman Conquest in 1066. See n 45, p 3.

117. See n 5 above, c 786.

118. SC Deb 6 April 2000 c 160.

119. Ibid.

120. DETR, (2000), Improving Rights of Way in England and Wales, Analysis of Responses to Consultation Paper, HMSO, London, c 6.

121. See n129 above, c 161.

122. See ‘Block around the rock’, The Guardian, 9 March 2015 http://www.theguardian.com/society/2005/mar/09/environment.ruralaffairs.

123. C Barclay (1999), Research Paper 99/23, Right to Roam Bill, House of Commons Library, London, p. 25.

124. A project undertaken by Natural England to research and map any ‘forgotten’ rights of way. See: de S Bruxelles and V Elliot, (2008), ‘£15 m project was meant to find ancient paths but lost its way’ The Times, 5 March.

125. Department for the Environment, Transport and the Regions (2000) Cm 4909, Our Countryside: the future, Stationery Office, London.

126. I Davis (2000), ‘Prescott Dismisses CROW Bill Dissent’, Farmers Weekly, September 29.

127. See n 127 above, p.7.

128. Ibid, p 119.

129. Ibid, p 114.

130. Ibid, p 123.

131. Ibid, p 124.

132. Ibid, p 133.

133. Ibid, p 135.