Forgive Us Our Trespasses

Posted by Ed Douglas on 15/01/2021
Chrome Hill at sunrise. Photo: Shutterstock

Proposals to make ordinary trespass a criminal offence have alarmed outdoor groups, including the BMC. Ahead of a debate in Parliament on the issue and the possibility of Government publishing the Police Powers and Protections Bill, Ed Douglas calls for the Government to think again.

Among all the strange and surprising outcomes the pandemic has created, those of us who know the Peak District agree we’ve never seen crowding like it.

In the first lockdown, Britain’s oldest national park had felt emptied of visitors and cycling its roads was uncommon bliss – at least until boy racers discovered they could speed with impunity. More recently, car parks have filled early and latecomers have left their vehicles pretty much anywhere they like. The last year has seen an uptick in wildlife crime and fly-tipping, the threat of fires from disposable barbecues and kids being rescued from Bleaklow after losing their way on their latest Instagram adventure. Walls have been broken, paths turned into broad quagmires, garbage dropped and nature disturbed.

There are several ways of looking at this. One, some people really don’t know what their responsibilities are when they visit the country – and why that is. (Clue: the Government spends almost nothing on promoting the Countryside Code, which is finally getting a long-needed revamp.) Two, isn’t it great that so many people are discovering the outdoors for the first time? Three, why are people so selfish and who’s going to pay for all the damage? You sense the last one being asked most urgently by landowners and managers.

The consolation of nature has kept lots more of us going through the confusion and uncertainty of the last year but these questions have made many who represent the countryside’s sometimes conflicting interests think deeper about the public’s strained relationship with the natural world and rural businesses. Writing in the Daily Telegraph recently, Ben Goldsmith, brother of environment minister Zac Goldsmith and a Somerset farmer, wrote of his sadness at how the English public flocks to honeypots when it visits the countryside or the coast, ‘where they know they won’t run into irate landowners or “Keep Out” signs.’

Citing how Labour stole a march on the liberal Right with the Countryside and Rights of Way Act, now 20 years old, Goldsmith reminded us how the right to roam covers just eight per cent of the countryside and how 97 per cent of our rivers remain off limits. ‘The lack of access enjoyed by the English to the natural fabric of their own country strikes me as a terrible inquity,’ he wrote. ‘Reconnecting people with the natural world is one of the central challenges of our age.’

READ MORE: Guy Shrubsole on 'Is it time to extend the Right to Roam?'

Only the most hard-bitten class warrior could be disappointed that a Tory might hold such progressive views. Unfortunately for those campaigning to improve access to the countryside in England, the message coming from the actual Conservative party is more equivocal: a reflection of its inherent and contradictory struggle to balance an instinct for liberty with a hand-to-hand defence of the rights of property. On one hand, rollout of the Marine and Coastal Access Act is finally nearing completion, albeit 12 years after the legislation was first passed by the last Labour government. On the other, the 2019 Tory manifesto promises new legislation on the subject of trespass. And it does not make for comfortable reading.

‘We will tackle unauthorised traveller camps,’ the relevant section begins. ‘We will give the police new powers to arrest and seize the property and vehicles of trespassers who set up unauthorised encampments, in order to protect our communities. We will make intentional trespass a criminal offence, and we will also give councils greater powers within the planning system.’ The emphasis is theirs, not mine.

Not surprisingly, this commitment to turn the screw on the issue of trespass alarmed not only the Gypsy and traveller community but also outdoor groups anxious that hard-won freedoms were under attack. The campaigner and author Guy Shrubsole launched a petition to Parliament that comfortably reached the threshold requiring the issue be debated. The BMC and other outdoor representative bodies are already lobbying ahead of this debate and the potential publication of the Police Powers and Protections Bill (the Bill which will bring in any changes to trespass law) and are seeking your help in making it clear to the Government that criminalising trespass is not acceptable to our community.

Contact you MP about the debate using this template letter.

Photo: Peak & Northern Footpaths Society

In its response to Shrubsole’s petition, the Government claimed its measures ‘would not affect ramblers, the right to roam or rights of way. Instead, measures could be applied in specific circumstances relating to trespass with intent to reside.’ It pointed to its 2019 consultation on the issue and said it has been looking favourably at legislation passed in Ireland in 2002 that made it an offence to enter and occupy land without the owner’s permission, ‘or bring any “object” onto the land, if this is likely to “substantially damage” the land or interfere with it.’  This ‘Irish Option’ has found favour with a number of Tory MPs, including Mark Francois, MP for Rayleigh and Wickford. ‘I believe the Irish Option really would provide a deterrent, so I do hope that will be enacted,’ he said recently.

It’s certainly the case that illegally occupied sites can be a bane on the lives of those living nearby. But the Gypsy and traveller community say the Government’s commitment plays to prejudices and won’t solve the problem. They point out that only a small fraction of caravans in England are parked illegally and better local authority provision is the answer. On that latter point they have the support of the police, who have also said that existing laws are sufficient to deal with the problem of illegal sites. In 2018, the National Police Chief’s Council and the Association of Police and Crime Commissioners said they were not in favour of changing the law because of this.

And wildcamping?

For the outdoor community, one of the most obvious impacts of introducing the Irish Option is on wild camping, which, if you interpret the experiences of Irish outdoor folk, seems if not a crime then certainly transgressive and not the most natural thing in the world. Whether or not the proposed legislation effectively outlaws wild camping is at present uncertain, because the proposals are so vague. More certain is the chilling effect on the freedom people experience in the countryside if trespass becomes a criminal offence, making the current proposals a very big hammer for a very particular and quite small nut. As the BMC said in its response to the Government’s consultation, ‘the potential threat of this would deter many from exercising their legal rights. This is especially important against a backdrop of an increasingly sedentary society and significant efforts from many directions to encourage people to be more active in the outdoors.’

The pandemic has generated a real impetus for more of the public to connect with the natural world. As outdoor people with a lifetime spent in the hills, some of that process has seemed at times alarming. But the answer to these problems is not to make the public criminals for straying off a footpath. Mostly it’s about better education and greater access, not the opposite. It’s become increasingly clear that the natural world is nearing a state of collapse. We won’t begin to solve that existential crisis by frightening ordinary people with the idea they might face a criminal conviction for exploring their own natural heritage. If you feel the same, then I’d urge you to write to your MP and tell them so.

About the Author

Ed Douglas is a writer and journalist with a passion for the wilder corners of the natural world. An editor of the Alpine Journal, Ed is an enthusiastic amateur climber and mountain traveller, with a particular interest in the Himalaya. 

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16/01/2021
This is certainly very worrying, and I've signed the petition and will be writing to my MP. However if the government is looking at the Irish Option, what has been the actual effect on outdoor activities in Ireland? According to Ordnance Survey Ireland "“Wild” camping ... is allowed in much of Ireland, especially near the sea and in national parks." and they are actively promoting suitable areas on their website. This suggests that the Irish legislation has not had the effect this article is concerned about.

This is not to say we can be complacent, or that the discriminatory aspects of this aren't themselves concerning.
Anonymous User
17/01/2021
I agree with most of what you say, however the problem of getting consensus with countryside uses is difficult when they have conflicting views. I live in a South Pennine rural area & walk its paths on a daily basis, mountain bikers have become a problem, they are causing damage to the paths & cutting new water ways through woodland, when confronted they are in the main rude & offensive. The problem as I see it is local authorities & countryside organisations do little to discourage their activities therefore land owners now resort to petitioning for a change in the law. I am of the belief most of these bikers have no idea on rights of way & the countryside code or the damage & bad will they are creating. I feel the only way to address this issue is to discourage the use of footpaths by bikers by advertising through signage & advertising the problems & distress they cause through their illegal (if only in common law) acts. You speak as though we have little access but we are blessed with a wonderful network of footpaths & bridal ways, if we used them as intended a lot of the heat would be removed from the rights of way issue. as for the traveler's I will leave it to others but there can not be many in the land who would welcome a site close to their home.
Anonymous User
19/01/2021
Probably at this point and in consideration of all the angles that this issue presents we should probably go the route of charging a small fee for an annual licence to roam. Expand the areas we are able to roam, and to funnel the proceeds to more land ranger roles that assist in both maintaining the land, but also checking for licences.

This works well for fishing for example. Failure to show a licence can lead to more stringent measures. I'd be willing to pay a small amount to preserve my ability to enjoy our country without the fear of either a criminal record, massively over-bloated fine, confiscation of my gear and to further overstretch the police force.
Anonymous User
26/01/2021
To the second respondent below (a red socks rambler?) I'd suggest that if mountain bikers had a more extensive network of trails they could use it would be in everyone's interest. Whilst I don't condone riding irresponsibly or without due care for other trail users, the cyclists he refers to are not doing anything illegal (not in Common Law, nor any other kind of law). Such trespass is a tort, a civil wrong, and they are only liable to be sued for damages by the land owner, if they have not sought their permission first. (And who's to say they haven't?) I'm not surprised that some rambling busybody gets rather short shrift from them. I have much sympathy for those who, being denied fair access, seek to take direct action. It isn't very different from the Kinder Trespass, without which there mightn't have been any National Parks in the U.K. In the specific case of bikes, too, there is published evidence that shows bikes generally contribute less to erosion than walkers (the one exception being when going downhill on soft, wet ground, when the ruts made by the bike will encourage run-off).

To the third respondent (a fisherman landowner?) I'd suggest that his proposal barely works for fishing (many fish without a licence and are seldom caught) and would be utterly unworkable in the case of access to the countryside, as it would be impossible to police. As well as being morally repugnant. Does everything have to have a price put on it. Our forebears shed their blood to defend our freedoms. Maybe you think we should charge an annual breathing fee too, whilst we're at it.

Ite et pedica te ipsum
Anonymous User
25/02/2021
Ed it has been interesting to read your article and I think as little as 5 years ago I would have whole heartedly agreed. I am a land manager on Dartmoor and a veteran BMC member but I am sorry to say the vulnerability of once common species is such, that their very existence cannot await the ‘education,’ of large sections of society, so they might tread more lightly and consider more carefully the impact of there actions. In the past few weeks I have witnessed to constant unwitting disturbance of a peregrine nesting site on private land where the landowner is trying protect the site but curiosity and a sense of stubborn entitlement trumps biodiversity. The BMC is not itself without fault, the common refrain in many guidebooks about restricted access, advising climbers to keep a low profile is simply no longer tenable when clusters of Dartmoor boulders are “cleaned” where once bats might have roosted in ivy clad cracks and birds nested. The pressure on isolated spots is increasing and the advent of self publication elevates this to an extent not previously witnessed , I am sure that even Ken Wilson had misgivings of the impact of Hard Rock. We need to reconsider now more than ever our personal impact on the environment we love and to rethink how we exercise our privileged liberty.

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