04 July 2014 by Walking Class Hero
Warning: This blog contains legal terms, jargon & some Latin – please read responsibly.
There’s a lot of law that underpins your right to walk in England & Wales. The 130,000 mile (220,000 km) footpath network is made up of public rights of way and definitions relating to these run to over 2 pages of tightly packed script in the nearly 1000 page Rights of Way: A Guide to Law and Practice (4th edition).
There’s a lot of law relating to your right to walk in England & Wales. In the Rights of Way: A Guide to Law and Practice (4th edition) the Table of Cases is over 10 pages, the Table of Statutes & Conventions another 10 pages, 4 pages listing Orders and Regulations and a further 2 pages listing Circulars and Guidance.
There’s a lot of law associated with you going for a walk. It is a mixture of common law (defined by judgement in court) and statute law created by Act of Parliament along with subordinate regulations. Since 1189, English law has been a common law rather than a civil law system since no major codification has taken place and judicial precedents are binding as opposed to persuasive. This inevitably leads to the citing of old (and I mean old) law in some cases. At the other end of the scale there have been 8 Parliamentary Acts passed in the last 80 years that have made substantial (and I mean substantial) changes to the law concerning public rights of way.
Somewhere near the beginning of the Rights of Way Act, 1932 you can find the following statement: ‘The object of the Rights of Way Act is to simplify the law relating to the proof or disproof of disputed Highways of all kinds...’. Well that worked a treat then or as our learned friends might say contradictio in adjecto. You’d think with so many barristers and solicitors serving as MPs over the years they’d have written better laws. It’s little wonder that organisations like the Ramblers spend so much time engaging with Parliament advocating change that not only suits walkers but has some grounding in common sense - ex aequo et bono maybe.
Not far from me is a path across Bushy Park known as the Cobbler’s Way. This and other routes were closed in 1734 when the Earl of Halifax enclosed the park within a wall. A local cobbler, Timothy Bennett, was much exercised by the inconvenience this caused to local residents and petitioned the Earl to reinstate the path for all. In 1754, campaigns took a long time then as well; he summed up his case, on behalf of the people, by saying "I am unwilling to leave the world a worse place than I found it." Free access was duly restored, a plaque celebrating the event was erected in 1900 but perhaps not unsurprisingly the act of enclosure (or inclosure) like Banquo’s ghost hovers over much of English common law today.
With all the law concerning footpaths, access land, assembly, trespass and walking in general it means that the Ramblers is no stranger to the English courts. They occasionally take a case to the High Court to test a principle of law and have actually won a case in the House of Lords, the highest court in the land. Unusually, it seems to this layman, R (Drain and Godmanchester) -v- Secretary of State for the Environment, Food and Rural Affairs (2007) won a definitive, relatively unambiguous and very helpful ruling about how the law which establishes rights of way through long use is meant to operate. With the 2001 Trevelyan case we lost the case but walkers are still seeing benefits from the resulting clarification of the law about deleting supposedly wrongly-included rights of way from the definitive map.
Recently we found ourselves in the High Court to hear the result of the appeal against the ruling of the 1993 ‘Andrews’ case concerning paths ‘set out’ as a result of Inclosure Acts. Over 20 years ago, Ramblers member John Andrews, applied to Suffolk County Council for a footpath at Great Barton to be added to the definitive map on the basis that it had been created by the Inclosure Commissioner who was responsible for the inclosure of land in that parish in 1805.
Suffolk disagreed, and because they thought the principle important the Ramblers appealed to the Secretary of State for Environment, Food & Rural Affairs. The Secretary of State sided with Suffolk County Council which led to the Ramblers challenging this in the High Court. Mr Justice Schiemann agreed with the Secretary of State. At the time there was a general view, despite all the decisions to the contrary, amongst lawyers and other experts that the ‘Andrews’ case was wrongly decided and since 2001 the Ramblers had been trying to try to ensure that the case could be re-considered by the courts.
The latest ruling, decided by Mr Justice Foskett, also finds against John Andrews (which is in effect The Ramblers). The ruling runs to a lot of pages and ends with clause 141:
The journey through the various provisions and considerations that govern the decision in this case has not been easy. From my point of view, it has involved passing through some unfamiliar territory. Whether I have arrived at the right ultimate destination will, I suspect, be for others to judge. However, the journey has been an interesting one and one made the more agreeable by the first-rate submissions I have received from all Counsel, both in writing and orally, and from the informative research of Drs Hodson and Hollowell. I am indebted to them all.
So again speaking as a layman; 21 years, tens of thousands of pounds and numerous submissions has resulted in someone saying ‘thanks, it was great but I’m not sure if I’m the right person to ask but you might want to try one of my mates’. What was it that Shakespeare said? Oh yeah: ‘The first thing we do, let's kill all the lawyers.’
What I do know, however, is that you need to be constantly vigilant to protect the rights you have, you have to constantly fight to improve these rights and that whether you win or lose resorting to the law is expensive (and I mean expensive).
I also know that without organisations like the Ramblers we wouldn’t have a footpath network or definitive maps or footpaths marked on OS maps or the right to roam or any number of other things we take for granted when we go for a walk.
Walking class hero’s playlist:
The Gambler – Kenny Rogers
I Fought the Law – The Clash
Common Law – Jamie Knight
Can I Get A Witness – Marvin Gaye
Lawyers, Guns And Money - 2007 Remastered – Warren Zevon
Lawyers In Love – Jackson Browne
Sometimes You Win When You Lose – Kel-Anne Brandt
Walking Class Hero is a regular blog contributor. Find out more about him, including his previous blog posts, and follow him on twitter @walkngclasshero.