A call to trespass, or harmonising access to land in England & Wales with Scotland

A few days ago, a lively debate cropped up about access to land in England and Wales, primarily as a result of this tweet and related tweets by the campaigning journalist and author George Monbiot.

Monbiot clarified his remarks later, in a way that suddenly thrust the right of responsible access that exists in Scotland (as a result of Part 1 of the Land Reform (Scotland) Act 2003) into the foreground. This then led to BBC Radio 4 getting in touch with me, thanks to a referral from fellow legal academic Antonia Layard. (With her knowledge of access law she absolutely could have done the gig herself, but I am grateful for the referral nonetheless.)

The team at Farming Today were the budding comparative lawyers. They asked for a bit of an explainer about the differences between the law in Scotland, England & Wales, Northern Ireland and indeed in other countries, so I tried my best to explain that. They also asked me to comment on how practical or likely a change to the law in England & Wales might be.

I have analysed the difference between Scotland and England & Wales in this blog post. That focussed on augmented reality gaming, but most of the principles apply to this topic. The majority of England & Wales is not covered by the rights of access conferred by the Countryside and Rights of Way Act 2000 (which applies to mapped open access land, including mountains, moor, heath and down, and registered commons, covering just over 850,000 acres) or the Marine and Coastal Access Act 2009. This means those seeking access to areas not covered by the legislation either need to stay on the path (assuming that is a public right of way) or rely on a landowner’s permission for access. Monbiot started a debate about whether this state of affairs is appropriate in the modern era.

You can listen to the short programme here (for the next four weeks). Monbiot is interviewed towards the end, and I am interviewed after him.

As always, you listen back to these things and ponder if you could have expressed yourself a bit better. I am pretty happy with what I said and the way it was edited (thanks to the BBC team for that).

The two things that maybe did not quite come across as I intended (owing to radio excitement and/or editing) were as follows:

  1. When I spoke about the fact England & Wales has about 850,000 acres accessible via the CROW Act, I then mentioned that Scotland has approximately 20,000,000 acres. What I was trying to lead on to say was the Scottish regime chips away at that total (i.e. it excludes where access can be taken), whereas in England & Wales the starting position is that you can only statutory access rights when statute provides for it. In other words, in Scotland you can access, unless [X], whereas in England & Wales you cannot access, unless [Y].
  2. When I was asked how big a change it would be for England & Wales, I noted that in legal terms it would be quite a big leap, but I also stressed it was not for me as a Scotsman to comment on whether or not it would be a big cultural shift for those south of the Anglo-Scottish border. Alas, that caveat got lost on the cutting room floor.

Finally, I explained a little bit about access in Northern Ireland (pretty strict when you are not on public rights of way, and they don’t have the CROW Act to help), the situation in continental Europe (where effectively nationalised hunting can allow access without permission), and the Nordic countries. The Nordic countries are an especially fine example when it comes to access law, owing to the “open air life” (Norway) and “every man’s right” (Sweden). (I wrote a bit about this in a 2014 article in the Juridical Review.) This further comparative law was also edited out from the programme, but so it goes.

For purely academic reasons, I will be listening to the ongoing debate in England & Wales with great interest.

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About basedrones

Bachelor of Laws. Scots lawyer working at the University of Aberdeen. English law qualified. Took far too long to write this bio. Blogs on legal issues, with occasional veering into other purportedly intellectual stuff from time to time. Tweets about legal issues, education, law clinics, fitba, music, rogue cell division and not at all about politics at @MalcolmCombe.
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One Response to A call to trespass, or harmonising access to land in England & Wales with Scotland

  1. Pingback: Some thoughts on legal blogging, with reference to raptor persecution, surveillance and access to land | basedrones

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