“WE NEED MORE ACCESS”
Is the best of the English countryside hidden behind walls and fences? Nick Hayes has made secret forays on to private land across the country to expose just how little of it is open to the majority of the population
Just why is so much of the English countryside out of bounds to the majority of the population? Nick Hayes looks at the laws of trespass.
Trespass is a strange phenomenon. From lawyers to landowners to stray ramblers, there are few people out there who really understand it.
On the one hand, trespass is no big deal: everyone does it. It lives in the English psyche like an episode of Last of the Summer Wine, evoking pantomime images of wily bounders being chased over the hill by a farmer and his shotgun. But then on the other hand, if you’ve ever done it, you might have come face to face with an altogether nastier side of trespass: an aggressive response from stewards of the land that is vastly disproportionate to the act itself – a moral indignation that seems to view your walk in the countryside as a heinous act, a threat to the very order of civil society.
In legal terms, you are trespassing if you enter the perimeter of any land that you do not own, or do not have express permission to access. Trespass is defined as a tort: a large portion of common law that governs any harm or damage done to any individual. Trespass began life in the 13th century as part of a legal portfolio to combat cow rustling and burglary, and offer redress to its victim. But
over the centuries, through a series of legal precedents, the need for any actual harm of property disappeared, and trespass itself became defined as the harm. One foot over the line is now, legally speaking, tantamount to assault. This explains why gamekeepers, landowners, anglers and farmers react so pugnaciously to the gentle act of walking: they are responding not to an act of digression but, as the law defines it, an act of aggression.
TRESPASS AND THE LAW
The fact that the law treats trespass as harm is called a ‘legal fiction’ – in other words, an assertion that is accepted as true for legal purposes, even though in actuality it remains either untrue or unproven. It stems from the 17th-century writings of
John Locke that conflated the idea of someone’s property with their own body – a trope he used to justify the privatisation of common land. But this legal fiction has hardened into something real – we seem to have accepted a legal definition of walking that is wildly incongruous with what we are actually doing. During a recent interview with my local BBC radio show, as part of the publicity circus
for my book on the subject, The Book
of Trespass, I came across an example of just how internalised this assumption of harm has become. Sitting there listening to the show through the telephone, waiting for the pop song to end, I heard the DJ introduce me with these words: “Right-to-roam campaigner Nick Hayes has been defying landowners by walking through their property.”
The ensuing conversation was slightly awkward, as I tried to persuade the presenter that I was in defiance of no one, that my strolling the meadows and vast open spaces of England was for a connection with nature and not against anyone at all. It is the law that defines it otherwise, and the book I have written simply seeks to know why, to set that definition in its historical context. I have nothing against landowners, I have enormous respect for gamekeepers, and I think farmers should be valorised alongside nurses and doctors for the work they do for society. Yet the law of this land places me in direct opposition to them – it sets us up as enemies.
I began trespassing because I like to draw. I make my living as an illustrator and when I am out in nature, if I am not swimming, kayaking or walking, I am
“My strolling the meadows of England was for a connection with nature and not against anyone; it is the law that defines it otherwise”
most often found with my back against a tree, sitting in a shady dell, drawing whatever lies before me. There is something calming about drawing, something that demands and enables a closer attention to the world around you. Drawing is meditating with your eyes open.
Likewise when I walk in a woodland or swim in a river, I am doing it not in opposition to anything, but because spotting a herd of deer or catching a fleeting glimpse of a kingfisher is to me simply the most magical experience of life. I go to nature because the myriad sights, sounds and sensations not only fill me with wonder and inspire a deeper learning of the natural world, but also because they calm me and set my life in perspective. I am careful to tread lightly, to leave no trace, and more often than not, return with a bag full of ancient litter, found wedged under clumps of brambles or caught in the reeds of the river.
CROSSING BOUNDARIES
There is real damage in trespass, but it is not to the landowner or the land, but to the local community that have no rights of access. To cross a wall seems like an aggressive act, but no one stops to question the wall itself, what lay there before it was built, and what happened to the community whose ties to the land and each other were severed when it was built. The damage of trespass is that the law actively discourages society to access nature.
Not only are we excluded by the ‘architechtonics’ of the countryside – the walls and barbed wire – but also by a ‘mindwall’ centuries in the making, a moral boundary that prohibits people from stepping over the line. It feels wrong.
The damage done to society can be measured in the mental health and obesity crises that are gripping our nation. NHS Forest, a project coordinated by the Centre for Sustainable Healthcare, has found that physical inactivity rivals smoking as one of the nation’s biggest health problems, and is responsible for 17% of early deaths in England. It estimates that physical inactivity drains the economy of £8.2 billion in healthcare costs; the centre has laid out a plan for society to gain the benefits of nature.
Finally science is beginning to prove, empirically, what our bodies have known all along: in body, mind and soul, nature can heal us. But if access to nature is access to our own peace of mind, then why does the law of the land actively forbid us?
In Scotland, Norway, Sweden, Estonia and many other European countries, these rambles, swims and kayaks of mine are defined differently: they are defined as a human right, something that should be encouraged. Civil society remains intact, the land is still privately owned, yet the public’s right to access nature supersedes the landowner’s right to exclude.
Each of these countries’ right-toroam customs is contingent upon the concept that with greater rights come greater personal responsibilities – to nature, to the owners of the land and to the communities that live in the area. By asserting your rights, you are also engaging in a deeper act of responsibility.
SHARING THE COUNTRYSIDE
The Book of Trespass is my account of numerous trips into the privatised land of England, over the walls and fences of the dukes, lords, politicians and private corporations that own our nature. It describes the history of how the English became excluded from the land, and the various faultlines of class, gender and race that were riven into our society by the property concept, and whose effects last to this day.
But the book is not about encouraging people to trespass; I get no buzz from the illicit nature of trespass and I won’t lose interest in nature when the law has been changed. Instead, the book outlines the case for presenting access to nature as a public right, something that will alleviate the pressure on the NHS and encourage a greater relationship (and therefore a deeper sense of care) with the environment around us.
The countryside is a place of work, a factory floor that supports our nation, but it is also a place that offers us huge health benefits. We should be working towards a legal system that allows the public to access these benefits, that presents nature as something we can share.
“With greater rights come greater responsibilities, to nature, to the landowners and to local communities”