Speech by Marion Shoard entitled ‘Off the Track: Problems Looming for the Right to Roam’ given at Countryside Recreation Network Conference at Buxton, Derbyshire, 17 April, 2000 and published in Managing the Challenge of Access: Proceedings from the 2000 Annual Conference of the Countryside Recreation Network, edited by Emma Barratt

I hope you've all enjoyed a day spent beginning to contemplate what's actually going to be involved in administering our exciting new right of access to some of the countryside of England and Wales. I have certainly enjoyed it, but unlike lots of you I’m not actually going to have to administer it myself. And much as I wish you well in this task, I'm not altogether sorry that I won't be having to join you in it, because challenging and stimulating though I'm sure it will turn out to be, it will, I also feel, turn out to be beset by more than its fair share of frustrations. We've heard lots of encouraging and reassuring noises today, as is of course only right and proper. But I'm afraid a certain amount of tears, wailing and gnashing of teeth lie ahead, because of the particular way in which the government has chosen to approach the access question in England and Wales.

To get an idea of whence the problems come, it's worth just reminding ourselves what the government didn't do. In seeking to create a right of access to the countryside it could simply have announced that on a particular appointed day the law of trespass would be overturned, so that a general prohibition against being present in the countryside would be replaced by a general right to be present. Exemptions and exceptions could have been provided for obvious and easy-to-understand reasons, say, an exclusion for people's gardens to safeguard their desire for privacy, another for land under growing crops so they would not be damaged. Further temporary exemptions could have been added to deal with obvious and easy-to-understand events, like the shooting of game or the felling of trees. There would have been no need to define particular areas to be covered by the right, for anywhere that was not being excluded would have been included. There would have been no need to conjure up explanations for landowners affected as to why they were being hit while other landowners were being left alone. And there would have been no need to devise a means of communicating to walkers the news that certain stretches of countryside were becoming available to them while other not necessarily all that dissimilar stretches of countryside were remaining out of bounds. A right of access along these straightforward lines is not some ludicrously fanciful extremist ramblers’ fantasy. Exactly such a right works perfectly well in Scandinavia and is about to be introduced no further away than Scotland.

For the new Labour government in Westminster, if not for the Labour-led executive in Edinburgh, the straightforward approach was far too simple. Apparently in the belief that if landowners could be divided they would put up less resistance, Tony Blair, John Prescott and Michael Meacher took it for granted from the outset that whatever might be going to happen north of the border, the right of access in England and Wales was going to be arbitrarily restricted. And the restrictions were not going to be simple. They were going to be such as would be bound to give rise to ever-burgeoning complexity.

Once it had settled on a partial rather than a universal approach, the government did not of course even stick to just one kind of easily identifiable landscape to provide access to. It could have done this. As many of you know, in 1975 the government of the former West Germany enacted a right of access throughout all woodland, large or small, state or privately owned in its territory. At the time, landowners and huntsmen said this right would cause damage, disturbance of game and wildlife and more forest fires, but the right worked well, brought substantial benefits and by the time it was all nicely bedded down twelve years later, a system was in place robust enough to take the addition of a raft of new features like fallow land and uncultivated rough areas but, most important of all, Germany’s network of private roads and paths, unless they pass close to a dwelling or through a farmyard. This last element has at a stroke opened up other landscape features like lakesides, riverbanks and a great deal of farmland. Some of the regional local authorities which administer the right have extended it further, for instance, to field edges, another type of feature which people can recognise and which, like roads and paths, they often intuitively expect to be able to pass along.

Our government decided to kick off with five landscape types. Unlike woodland, however, which is reasonably easily recognisable, some of our access land types would be ones which even an expert would find hard to define, let alone a Sunday afternoon walker. To make things even more puzzling one of the five types of countryside selected is not even a type of countryside at all. Common land is not necessarily heather and birches: it is whatever has been registered as a common: here in Derbyshire the 83 commons scattered through the county include disused quarries, stretches of limestone grassland, marshes, woods and bits of road verge. But at least we know what is common land and what is not. The same is far from true of mountain, moorland, heath and down. What's called a “moor” in the Somerset Levels is very different from either the so-called “moors” on the edge of York or the North Yorkshire Moors.

Even if you've decided you mean North-York-Moors-type moorland rather than other things called moors, it turns out to be far from easy to define just what you mean. If you try and brand moorland by vegetation type, you face the difficulty that such semi-natural vegetation is constantly changing naturally and can be even more dramatically altered by deliberate changes to, say, the grazing regime. Mountains can (perhaps) be defined by height, but heathland and downland are if anything even more problematic than moorland. In the consultation paper it published in 1997 the government had a go at some definitions. "Down is characterised by semi-natural grassland on shallow, lime-rich soils associated with limestone escarpments”, it offered. So how thin would the soil have to be to be considered “shallow”? How calcareous would it have to be to be “lime-rich”? “Escarpment” sounds good for the north edge of the South Downs, but would this word disqualify 40 per cent of the downland we actually have, which is on Salisbury Plain?

Once the enormity of all this sank in, the unfortunate officials faced with the task of making the government's scheme flesh seem to have given up. The Countryside and Rights of Way Bill is remarkable for the absence of definitions of the kinds of land to which the right of public access is actually supposed to apply. This is just as well. How could any definitions have coped with those countless hillsides in which you see heath, down or moor gradually merging into, indeed been taken over by scattered trees, here thin, there becoming dense woodland, the whole scene changing its shape from year to year? What about those green hillsides whose grassland might be semi-natural but might be “improved” pasture? In shrinking from dilemmas such as these, the legislators have been entirely sensible. But they have not disposed of their problems in so doing. All they have done is replace one set of problems for another. For of course the land to be covered by the new right has got to be delineated in some way or other. And what the government has decided is that instead of it consisting of types of land which can be defined, it will actually consist of areas which officials draw upon maps - areas which bear some resemblance, but a varying one, to the five types of countryside originally mentioned. The land covered by the new right is now to be whatever the officials of the Countryside Agency and the Countryside Council for Wales say it is, within the constraint that it must consist at least '' predominantly” of one or more of the five types of land originally specified, whatever these five types of land actually are now that no one seems even to be trying to define them any more. This desire is understandable, but a price has to be paid for getting rid of the problem of definition. Whatever logic there was to the selection of the original five types of landscape, and presumably there was some logic, although we never seem to be quite told what it was, now goes by the board. To create nice tidy chunks of access land on their maps, the agencies can and doubtless will include whole swathes of land which have nothing to do with the original five types. Bits of woodland, for example, which are surrounded by down or heath can now be cheerfully thrown open. But how are the owners of these woods supposed to understand why this is legitimate when the owners of other woods remain untouched? How are walkers to understand why they can walk in woods that happen to have been embraced by the mappers but not woods which have not? What goes for woods will presumably go for streams, meadows, private roads and tracks and much else. Natural and artificial vegetative change during the ten-year life of a designation will mean that the areas selected will come to bear less and less connection with the five types of land which the new right was supposed be all about.

The mapping process will invest in unelected bureaucrats a degree of arbitrary power which is perhaps unfortunate. The three-stage process through which their handiwork is unveiled, consulted upon and appealed promises to enshroud the countryside in one of the most monumental, dreary but completely inescapable wrangles which we have ever seen. Complaints that the whole thing breaches landowners’ human rights will gain added weight from the new element of arbitrariness which has been introduced. But even when all this water is under the bridge, the problems of communicating to those affected what land is covered and what is not, and persuading them to accept the outcome, will not have been resolved.

Landowners who find their woodland turned into access land when their neighbours is not are unlikely to accept this happily just because their remonstrations have been rejected. Many walkers, on the other hand, will never get round to looking at the maps on which the agencies will have expended so much sweat. People turning out for a walk on a Sunday afternoon will take note of the fact that they've got a new right to roam and go where they feel they ought to. Much reliance is being placed on signage which will be supposed to tell such people exactly where access land lies.

But since we do not even manage to signpost our public footpaths in accordance with the law, the signposting of 10 per cent of the land surface seems unlikely to materialise. So lots of people will wander on to non-access land in the vague expectation that somehow it ought to be accessible. This will understandably enrage landowners who have fought successfully to have their land excluded. The errant walkers will not understand their protests, especially since the distinction between what ought and ought not to be accessible has already evaporated. In the face of an angry farmer, they may retreat in baffled disappointment, or they may turn stroppy. The stroppy contingent may well be reinforced by the radical wing of the rambling movement who will argue that the arbitrariness of the system is itself evidence that there is no real case for excluding any of the countryside from the impact of their boots. Perhaps you can see why I anticipate degeneration in relationships throughout the countryside of England and Wales as a result of this new law. But there is more.

As if the problems springing directly from the choice of a partial as opposed to a universal approach to access were not enough, the government has chosen to bury its necessarily complicated proposal in further unnecessary complications.
In other European countries where rights of access exist, the responsibility for administering the right rests more or less straightforwardly in the hands of local authorities. The thinking behind this is that they are democratically accountable, are responsive to local needs, and, very important this, they are in a position to dovetail the implementation of access rights with their other areas of activity - the drawing up of countryside management plans, the purchase of land, communication with the public, the provision of rangers and traffic management like providing car parks and banning particular types of traffic where this is considered necessary. There are provisions for appeal against decisions taken at local level to national arms of government; and there are national agencies to be sure, like Statens Naturvårdsverket (the Natural Environment Protection Agency) in Sweden and Skov- og Naturstylrelsen (the National Forest and Nature Agency) in Denmark, which provide extremely useful advice and back-up to local authorities, and which oversee the publication of information about access rights to the general population including immigrants and foreign visitors.

Under our proposed new system, it is the new, little-known national agencies which assume primary responsibility, with councils being allocated a walk-on role, except in national parks. Local authorities outside the parks will have five main tasks. They will put up signs indicating access land.

Second, they will set up and organise local access forums. Third, they will be expected to manage sites which become popular, for instance through the introduction of bylaws and wardens. Fourth, local councils will be expected to secure access to islands of stranded access land. Fifth, they will be expected to enforce access rights where these have been contravened. (Though a complaint will have been made to the Countryside Agency or the Countryside Council for Wales, which will decide what should be done, it will then ask the relevant local council to take enforcement action.)

This division of function will mean that the public will have no idea who is really responsible for implementing the new right. They will not know who to complain to when it goes wrong. The division will create the usual confusion accompanying the split of closely related functions. But it is worse than that.

Local councils could be forgiven for seeing themselves as being asked to do the national agencies’ dirty work. Whichever way you look at things, they won’t be getting any of the glory if the system works because they won’t be taking any of the interesting decisions. The determination of which land will be covered by the new right, the mapping of access land, the publicising of the location of such land, the determination of closures and restrictions, the adjudication of what to do when the rules are broken - all these things will fall to the national agencies.

This situation seems to have come about partly because the new agencies have been created, need to have something to do and fancy taking on a high-profile new responsibility. But there is a real danger that local authorities will feel unenthusiastic about their role in making the new right of access work. They may wonder why they are being marginalised. They may wonder why their own considerable experience in this area is being disregarded. It is they after all far more than the Countryside Agency which have experience and expertise in administering such rights of access as exist at the moment - the rights of way. This is a complicated area but experience in it is extremely relevant to operating new rights of access in Britain. Yet the Agency has not seen fit to put a rights of way officer or a representative of the Institute of Rights of Way officers on its 16-member national access forum. Gareth Roberts tells me that fortunately the Institute will be given a place on the new 38-member forum currently being established in Wales.

The five tasks councils have been handed may be the most menial ones, but that doesn't mean they are easy ones. If local authorities do not throw themselves into their new tasks things won't go well. Take the issue of stranded land. Stretches of land suitable for access status but surrounded by land which is not can be surprisingly numerous. When I looked at detailed maps of the 6,500-acre Highclere estate in the north of Hampshire in 1998 I discovered that on that one estate there were twenty-two separate stretches of downland turf, some large, some small, some medium-sized. Only six of these were accessible or viewable from rights of way, which leaves sixteen on this estate alone which would not be accessible under the new right unless additional provision were made. The national agencies are empowered to ignore areas of land which would otherwise qualify which they deem too small to be conveniently mappable. Nonetheless, there will be many areas of stranded land apparently qualifying which they will find it hard to avoid including and which will have to be made reachable through the use of tools like public footpath creation agreements and orders if they are ever to be seen. The Bill does create new powers which might help but they provide only for engineering entry through linear features like walls and hedges which may bound access land. Access to land stranded amidst land not designated as access land will have to be achieved on an individual basis. Up till now, the creation of the odd public footpath to inaccessible land in this way has proved so difficult and expensive that has rarely happened. It will only happen in the case of stranded access land if local authorities put a colossal effort into making it happen. Will they?

If they fail in this regard, a lot of the stranded land which won’t be opened up will probably be in the south, in places like Highclere. Since the new right anyway offers so little to lowland walkers (down and lowland heath make up only four per cent of the 4 million acres involved) the news that even the little they are supposed to get will not actually materialise may exacerbate a customer satisfaction deficit already burgeoning for other reasons I have already alluded to.

Clause 52 does actually empower the Countryside Agency and the CCW to create new rights of way to stranded land. But it is very hard to see them doing this on anything like the scale that would be required, and in any case the thinking seems to be that such action should essentially fall to local authorities. Even if such paths were created they would create a peculiar anomaly. This is because rights of way are stitched to the surface of the globe, providing a permanent right of passage along it whatever the underlying use of the land; what is more, they have to be maintained and kept walkable. The right of access in contrast will simply guarantee that while land remains of a certain character, it will be accessible in principle. If it gets ploughed up - say a piece of downland is turned over to a strawberry field - the public retain their right to walk all over it until the access map is redrawn by the Countryside Agency, after which the strawberry field comes off limits and the access status of that land disappears. So if rights of way do get established to stranded land we could end up with cul-de-sac routes leading into the middle of ploughed fields.

If local councils are unlikely to crack the problem of stranded land, signage is likely to present them with a problem which may seem simple but is actually likely to prove an even bigger weakness in the new system. Signing access land will be down to local authorities, but it will be discretionary, not mandatory. I have already mention that some local councils have not yet managed to signpost all their public rights-of-way where these leave a metalled road - even though this is a mandatory duty they have had more than thirty years to discharge. Lack of enthusiasm in the far more challenging task of signing access land will be disastrous. Yet councils will know that the more energetically they draw access land to the public's attention the more visitors will come and therefore the more pressure there will be on them to find the resources for managing this use with car-parks, rubbish-bin provision, wardening, by-laws and so on, all of which will be expensive and, for sure, under-financed. For local councils, access areas may take on some of the characteristics of country parks as the public fasten on particular areas which become opened up. But whereas country parks are provided where and when the local authority wants them, and the local authority reaps the rewards in terms of public gratitude, they will be expected to provide similar facilities to areas selected by another body in places they may think unsuitable. If, however, local councils do not provide the maintenance expected of them problems like erosion, wildlife disturbance, litter and so on can be expected to materialise.

There are other features of the new system besides the allocation of responsibility between authorities which seem destined to provoke unnecessary confusion and, in doing so, to undermine the effectiveness of the whole regime. Too often potential problems have been met not with a clear and simple choice between alternative courses of action but with some kind of bureaucratic fix intended to be clever, but in fact spreading confusion. A few examples.
One is the decision to restrict the new right of access to a particular purpose. You can go along a public right of way or a road for whatever purpose you like, but you will be able to be present on access land only if you are engaging in “open-air recreation”. What seems to have happened is that someone has complained that people other than owners might otherwise use the new right to derive a financial benefit which might leave the landowner feeling aggrieved. Instead of saying “too bad”, the legislators seem to have felt they must somehow accommodate this rather unimportant objection. But what will be the position of someone who claims to be using the new right but is really sizing up the area with the object of writing a guidebook? A landowner seeking to enforce the law’s prohibition of this activity would probably find it difficult, but unenforceable rights only irritate those awarded them. In any case we actually want people to go and write interpretation material about land opened up for the first time under the new right. Otherwise people won’t make the most of some of the hitherto unknown areas now being provided for them.

Another provision which blurs an already messy picture even further is the derogation provided to all affected landowners for 28 days each year. Landowners will be allowed exemptions from the right of access whenever they can demonstrate the need for these for reasons of land management. Public bodies will also be able to get exemptions for conservation of wildlife, habitat, sites of historic or archaeological importance, for the reduction of fire risk and for other reasons of public safety. Why then do landowners need an additional 28-days worth of exemption every year without showing any cause at all? If they need some days to provide for flexibility lest say the weather be unsuited to the land management activities they had planned, why cannot this be covered under their exemption for land management? After all, who is to know that they might not need more than 28 days if inclement conditions persist?
This concession, sacrificing simplicity for the appeasement of landowners, has been further complicated by the desire to appease those it might disadvantage. A further new limitation prevents landowners taking advantage of any of their 28 days at weekends or on bank holidays. The consequence of this provision is that even where walkers have read their maps and worked out when they can go they may find themselves suddenly excluded on any weekday. How are these exclusions to be advertised? If a landowner posts a notice claiming he is taking advantage of one of his 28 days of exclusion and then just leaves it up, who is going to be counting what days he has already used and to take enforcement action against him? The obvious lack of such machinery will only undermine the credibility of the whole system and sow distrust.

Perhaps most important of all the wrinkles in the system concerns the position of dogs. We talk about a right to roam, but in fact few people actually roam over a moor. Dogs, however, do. Owners and conservationists have consistently made clear that dogs are the aspect of public access which cause them most concern. For dogs really do damage livestock and they really do wreak havoc with ground-nesting birds. An access regime which is to work needs a very clear, very emphatic line on dogs, such as the simple message that dogs are excluded from the right completely. In fact, people are to be allowed to take their dogs with them over the entire 4 million acres to which the new law is supposed to apply, but a dog has to be on a lead at all times when it is in the vicinity of livestock and everywhere between 1st March until 30th June (when birds are nesting). Anyone who has ever seen people out with dogs will know that these restrictions will be widely ignored. Even if people were trying to abide by this law, how would they know what the vicinity of livestock is? How could they be expected to remember to change their habits on 1st March? But of course people don't try to obey regulations affecting their dogs. Now, signs telling people to keep dogs on leads are frequently ignored. Letting dogs in on our new right of access – in effect granting a right to roam for dogs - with vague and inadequate safeguards may well turn out to be the most dangerous of all its deficiencies.

It's already been suggested that landowners confronted by walkers’ dogs may like to take advantage of a right of their own which is not being withdrawn and shoot walkers’ dogs which end up in what they consider to be the vicinity of their livestock while off the lead. I wouldn't be at all surprised if one or two of them do just this - another reason to fear that the new law may not exactly improve relations between town and country.

Well, if as I suggest, the new access regime for England and Wales is going to pose problems, what will be the outcome? One thing I think they mean is that the new system is not going to bed down easily and win universal acceptance, of the kind enjoyed by, say, the public footpath system. I suspect it will retain a provisional feel. This will make it more vulnerable than it would otherwise be to continuous revision and meddling of one kind or another by future governments. The fact that the system is being controlled by national agencies will of course make it easier for such changes to be made. Sooner or later of course a government hostile to the whole idea of access to the countryside will come along. The many complications of the new system will present it with a ready means of castration. The 28 days of unexplained exclusion could be added to. The bar on Bank Holiday and weekend exclusion could be abolished. Entry could be confined to a few access points and all the other forms of dilution being mooted during the Bill’s committee stage in the House of Commons could be effected. Slashing the resources available to the Countryside Agency for access would make the whole process of emasculation easier.

All this might sound ominously familiar to some of you. It's not unlike the fate which befell the access to open country provisions of the 1949 National Parks and Access to the Countryside Act. Local authorities were not enthusiastic; but central government retained quite a lot of power to get councils to take action if necessary. A change of government in 1951 and the advent of 13 years of Conservative rule meant that central government chose not to take the action needed to get the system to take off and, outside a handful of areas, notably the Peak District National Park, it withered away.

So will the new system peter out and eventually be forgotten? Well, downbeat though you may feel I've been up to till now, I don't actually think it will. There may be disadvantages in placing the system in the hands of the national agencies, but their energy and commitment will, I believe, ensure that access maps really will have been drawn up and pushed through the consultation and appeal processes within the five years we have probably got before a Conservative government has any chance of being elected. Once access land is on the maps, a future government will find it hard to abolish it, however much it waters down the meaning of the idea. This stage was of course never have reached with the provisions of the 1949 Act, which were almost immediately at the tender mercy of a hostile government. This time demarcation of access land is likely to prove irreversible.

This is partly because the world has become so different from the way it was in the 1950s. The idea of public access to the countryside, whatever the form in which it is implemented, has touched a chord in an increasingly democratic and undeferential age. You have only to look at the attitude taken by newspaper columnists in recent years. People like Polly Toynbee, David Aaronovitch and Simon Jenkins have come more or less new to the subject and have instinctively supported a universal right of access to the countryside or something very much like it. The idea of access will undoubtedly survive the current proposals.

Although these will at most open up only 10 per cent of the land, and that subject to considerable exemptions, the existence of something called a “right to roam” will change people's attitude to their presence in the landscape. They will start feeling they have a right to be in the countryside instead of thinking of themselves as trespassers. So there will be a change in the psychology of the people: they will think they have got more entitlement and that that entitlement involves being able to be off the public footpaths. As a result, both people who are more adventurous and people who can't be bothered to study maps will roam around more and more. There is probably going to be a lot more generalised trespassing over land not covered by the new scheme. And the absence of a logic for the limitations in the new proposals will encourage people to demand the right to go wherever they want.

While this is going on, a very different access regime will be taking shape across the border in Scotland. English and Welsh people holidaying north of the border will find that the strange limitations on access to the countryside which apply at home are unknown there. As in Scandinavia, they’ll be able to go wherever their presence will do no harm. As in Scandinavia, this system is likely to work with no apparent difficulties. When they get back home, the English and Welsh will wonder why they can't have the same system here. In the Borders the contrast between the two approaches will become particularly striking, and doubtless will be highlighted by the media, for whom it will become a peculiar anomaly.

Politicians wrestling with the fiddly and problematic aspects of the system devised for England and Wales will be increasingly drawn to an obvious solution: standardise the system throughout the UK - but on the Scottish model. In other countries which have taken a partialist rather than a universalist approach to access to the countryside, like Germany and Denmark, the tendency has been for the scope of the law to be ever further widened. This is, I think, where we are heading. It's why I am a keen supporter of the new arrangements for England and Wales in spite of the flaws I perceive in them. It's just that those of you who have to operate these arrangements are going to have a few difficulties in the interim. If I were you I’d have a stiff drink before going to sleep tonight. You may need it to fortify you for what lies ahead. But I still think you can consider it a drink of celebration as well.

Marion Shoard is the author of This Land is our Land (Gaia Books, 1997) and A Right to Roam (Oxford University Press, 1999)