A ‘Once in a Generation’ Opportunity? New Labour and the ‘Right to Roam’

New Labour in power has often been criticised for its caution in the face of vested interests and a conservative electorate. But a close reading of official documents suggests a much more complex picture when it comes to the ‘right to roam’ in England and Wales.

The strange radicalism of New Labour

The right to roam is back in the news. With a cause célèbre raging over the right to wild camp on Dartmoor, and the Labour Party in Opposition committing to new and much wider rights of access, it seems an opportune moment to re-examine the last time England and Wales legislated on these matters: with the Countryside and Rights of Way Act 2000, which brought in a right to roam over certain tightly-defined areas of the country.

This was one of those rare moments – which are not quite as rare as popularly assumed – when Tony Blair’s Labour Party was more radical in government than it had been while in Opposition. Labour’s 1997 Manifesto promised only to secure ‘greater freedom or people to explore our open countryside’, while promising that ‘we will not… permit any abuse of a right to greater access’. But once in power, a full statutory right to roam was enacted, applying to most heath, downland, mountain, and moor – about 8% of England’s land area.

It was not as if Labour did not face a great deal of opposition, especially at a time when the Countryside Alliance was beginning to find its feet and was becoming more hostile to the Labour administration. Many voices were raised in opposition to a statutory right to roam. The Country Landowners’ Association (CLA) wanted to compile a National Voluntary Access Framework to detail all access on one register, and leave things at that; the National Farmers’ Union did not particularly recommend a voluntary or statutory approach, but thought they might be blended together in a new Code of Practice, while bolstering and relying on the existing rights of way network. [1]

Tony Blair came to power in 1997 on a wave of public support. Image credit: Dan White/ Alamy Stock Photo, Rights Managed ID C8XFFT (used under license).

Three options and one choice: towards a statutory right to roam

Asked by Ministers to assemble detailed options, civil servants settled on three choices:

1.       A voluntary scheme (in principle backed by the Conservatives in Opposition);

2.       A voluntary code backed up by legislation that would be deployed only if needed;

3.       A statutory option that legislated for Open Access over defined areas of the country.

It’s the next stages of the process that get even more interesting. As part of ‘In 'All Our Footsteps’, we’ve been taking a look at the official papers leading up to the Act, now available at the National Archives in Kew, and an intriguing mix of Ministerial fiat, inter-governmental rivalry, administrative reality, and compromise emerges.

The Minister responsible, Michael Meacher, set himself throughout three goals – permanence, area access, and simple, fairly quick delivery. As time went on, this moved him ineluctably towards Option 3 – the most radical, but also the easiest, clearest and least bureaucratic choice. A voluntary code of any sort could involve years of argument; extensive (and expensive) legal action over compensation; and detailed, intensive work by local authorities. In short, as civil servants reported, a voluntary system would be ‘costly and time-consuming to prepare, negotiate and fund’. [2] Many other compromises were ruled out on a similar basis. Meacher was totally opposed, for instance, either to compensating landowners for their claims about falling land values, or of any form of government purchase of access land: on the latter, he clearly wrote ‘NO’ in the margins of one official submission. Meacher also ruled out the idea of land ‘swaps’ – with landowners opening up some areas in return for keeping others closed. These, too, would in Meacher’s mind ‘reduce the clarity, certainty and permanence’ of his new law. [3]

Michael Meacher as Environment Minister in 1997. Image credit: Open Government License 3 (Wikimedia Commons).

Option 3 was not only fairly easy to implement: it was also cheap, at least in the terms of the cost-benefit analysis assembled by an economics consultancy hired by the Government. If Ministers aimed at the same amount of access (over about 450,000 to 500,000 hectares, 3.3% of the land area of England and Wales), yearly costs under Option 3 might only be about £4.2m; for Option 2 they could be £12.6m, while Option 1 might cost even more, at £17.2m per annum. It was true that Options 1 and 2 might actually cost less in cash terms once they were up and running, but that was because they could be expected to open up much less of England and Wales to open access. A voluntary code might cover 100,000 hectares, or 0.6% of England and Wales’ overall area; an agreed approach backed up with the threat of government powers might allow access to 140,000 to 160,000 hectares; but actually legislating for the whole of the ‘open’ countryside could be expected to unlock 500,000 hectares. Therefore, as officials noted, ‘option 3 (statutory right of access) would be the most cost-effective approach’. [4] On a cost-benefit basis, that option also outstripped a ‘mixed’ approach, which was statutory but proceeded on the basis of local ‘access enforcement’ orders. [5]

The decision to bring forward the more radical option of a statutory right to roam did depend on the personal commitment of the veteran left-winger Meacher (and others). The issue was also an important holdover from Labour’s past, alongside other elements of ‘Labourism’ that New Labour paid homage and its respects to. Politics, of course, also played a key role in deciding how far to go. Here, responses to the Government’s proposals received during the official consultation period were critical. Only 9% of those responding backed a voluntary approach (67% opposed it). Support for a voluntary approach was only 33% even among landowners – though over half of them did not express a preference. [6] But civil servants and other planners were in the end happiest with new legislation, and legal rights, because that solution was the clearest, simplest, most cost-effective, and most likely to be permanent.

The ‘package deal’

The idea of presenting the countryside with a ‘package deal’ was also central to the measure’s success. Changes to the provision of rights of way were important in this respect, a fact which has often been overlooked in discussion of Labour’s reforms. Landowners’ representatives argued again and again for easier diversion of rights of way, and a more ‘modern’ set of routes with a streamlined process of addition and deletion (which the Ramblers thought meant a smaller, diminished network). [7] Ministers seized on this as a way to drain away some opposition. The ‘plan [was also] to allow linear routes to substitute for area access where there is a good reason’. [8]

New Labour’s commitment to political balancing acts came as naturally to Meacher as they did to more centrist Ministers: as one civil servant wrote privately, ‘Mr Meacher wants to minimise opposition from landowners by presenting this as something other than the full blown “right to roam”. Here he has to try and ride two horses – i.e. satisfying as far as possible both landowners and walkers’. [9] As Meacher told the Deputy Prime Minister, John Prescott: ‘I recognise that there are real concerns, particularly among landowners… I therefore recommend that we provide as much flexibility as possible… for example… linear access might be substituted for area access where there are good reasons for doing so’. [10]

This idea of a ‘package deal’ or ‘balancing act’ was also the origin of the 2026 ‘cut-off’ date for claiming any right of way as a legal thoroughfare, recently abandoned by the present government; and the rights of way ‘improvement plans’ that local authorities were now asked to undertake. Both were to some extent concessions to landowners, as well as an attempt to ‘modernise’ the rights of way network. When in December 1999 the Government was rumoured to be backtracking on some of the changes along these lines that they had promised the CLA, its President, Anthony Bosanquet, wrote to Blair himself:

Of equal concern, alongside the new right of access, are the proposals to modernise the regime on rights of way. This is a crucial part of the Bill, not only for balance, when set against the rest of the access package, but also because it is changes here that promise the greatest lasting benefits for improved access… This is a ‘once in a generation’ opportunity to improve the atmosphere between owners, walkers and other users of land, and… loss of [these] key proposals would result in a mood of despondency, and worse still cynicism. [11]

The ‘package deal’ was in part guaranteed by No. 10’s cautious approach that was to some extent a reaction to these views, slowing up and questioning Meacher’s more radical ideas. At the time, rumours swirled that Blair himself favoured Option 1, and might intervene to impose it. So far, we have found little sign of this in the official papers. In fact, the No. 10 Policy Unit gave little hint to Prescott’s Department of the Environment, Transport and the Regions whether they favoured voluntary or statutory access, but they did indicate that they were against Option 2. They only wanted to legislate once, rather than tiresomely revisit this controversial issue again if a new voluntary code failed: this particular ’middle way’, at least, was ruled out. DETR’s contacts in Downing Street seemed rather unconcerned about the CLA’s views. [12]

The main thing that the Prime Minister did insist on was a strong role for local consultative bodies, or Local Access Fora (LAF). The Department had always imagined that these would ‘wax and wane’, a fairly informal series of arenas for discussion. Faced with mounting opposition from landowners, during the last stages of preparing the package ‘No. 10 went shaky suggesting that a right of access should only come into force if and when the LAF had agreed!’ Blair had already told Prescott in one of their regular bilateral meetings that ‘he believed it would be the right approach to have a proper and effective local consultative process… reach agreement before any “right to roam” came into effect’. Downing Street was eventually talked around to a ‘much less draconian/ disastrous’ scheme, in part via the intervention of Meacher’s highly committed Special Adviser, Stephen Tindale. [13]

Although the right to roam in each area would not take effect until considered and commented on by these LAF, these were non-statutory bodies for ‘considering’ and ‘advising’ on change, usually working only to ‘promote constructive dialogue’ and bring together interested parties ‘to discuss important practical issues such as guidance to land managers and users’. [14]  These fora were more important to Blair for political reasons: Liz Lloyd, from his Political Unit, told her counterparts in DETR that ‘his [Blair’s] initial reaction was to want as much emphasis as possible on the local access fora, both to build flexibility into the system and to demonstrate that the maximum possible consensus was being sought’. [15]

Open access land notice on Lower Hollesley Common near Hollesley, Suffolk (2014). Image credit: copyright Keith Evans (used under Creative Commons license CC BY-SA 2.0).

Rivers and forests: unfinished business?

Interestingly in terms of present campaigns to open up access to rivers, so-called ‘riparian’ land by riversides was left out of the Act. As officials argued: ‘riparian land is rarely in public hands, poses problems in physically achieving access… and raises particularly conflict with conservation and fishing interests’. The Ministry of Agriculture, Fisheries and Food thought that riverbank access would go across ‘enclosed land. The current state of the farming industry is such that it might seem politically unwise to add to farmers’ burdens at this time’. [16] Forest areas were left for later work, mostly with the Forestry Commission; coastal access was included in the Act, but, it too was left for the future, in an enabling manner that would allow future Ministers to come back to that issue later. [17] Both involved complex definitional problems, as forest and coastal lands were often divided or scattered by all sorts of other land uses.

In the end, Part V of the 1949 National Parks and Access to the Countryside Act (which covered access to open country) was for the most part kept on the statute book, so as to allow access to be encouraged by local authorities and the Secretary of State outside the ‘right to roam’ itself. But such powers had been used only very sparingly since 1949, and never over riverbank or woodland. [18] Mountain, moor, heath, and downland remained the focus, in part because access to those areas was simply much easier to deliver – with lasting implications for access to riverside, foreshore, and forest.

Conclusions: many ‘rights’ to roam?

As so often, actual policy was made by many hands, in many ways – a palimpsest, collage, or mosaic that did originate in widespread popular pressure, but came to fruition via high-level political initiative, ideological presumption and then – in detail most of all – administrative reality. That this fitted with New Labour’s constant, ongoing attempts to triangulate between what it perceived to be vested interests did its chances of ultimate success no harm at all.

It is true of course that looking through official files in the National Archives lends itself to just these conclusions, as civil servants and Ministers tried to get a Bill through that would command widespread support in the party, country, and Parliament – as well as actually working without rapid, exhausting revision. We searched in vain for even more radical options - perhaps a blanket ‘right to roam’ - among government files. It also remains an open question in our research how much the clashes outside the governing machine determined the end-point embodied in the 2000 Act. Further research, for instance in the papers of The Ramblers, the National Trust, the CLA, and others will hopefully help to answer those questions, and many others, as we continue our work on access and rights of way.  

Endnotes

[1] The National Archives of the United Kingdom, Kew, London (hereafter TNA) MAF 753/4, Executive summary of report on responses to DETR and Welsh Office consultation, (October?) 1998.

[2] TNA MAF 753/4, DETR memorandum, ‘Access to the open countryside: options for discussion’, August 1998.

[3] TNA MAF 753/4, Pullen to Meacher, ‘Access to the open countryside’, 4 December 1998, Craddock to Carter, ‘Meeting with Michael Meacher’, 9 December 1998’, 15 December 1998.

[4] TNA MAF 753/4, MAFF/ DETR (?) memorandum, ‘Appraisal of options’, (October?) 1998.

[5] TNA MAF 753/10, Regulatory Impact Assessment for the access to the open countryside consultation proposals’, (February?) 1999.

[6] TNA MAF 753/4, Executive summary of report on responses to DETR and Welsh Office consultation, (October?) 1998.

[7] TNA MAF 753/9, Matthew to Smith, ‘[Chris Mullin’s] Meeting with the Ramblers’ Association’, 22 December 1999.

[8] TNA MAF 753/4, DETR (?) note, ‘Access to the countryside’, December 1998.

[9] TNA MAF 753/4, Harper to Pullen, 6 November 1998.

[10] TNA MAF 753/4, Meacher to Prescott, 6 November 1998.

[11] C. Clover, ‘Labour Set to Renege on Footpaths Deal’, The Telegraph, 22 January 2000; TNA MAF 753/9, Greenwell memorandum, ‘CLA: Countryside Bill: Rights of Way’, December 1999; Bosanquet to Blair, ‘Countryside Bill’, 22 December 1999.

[12] TNA MAF 753/4, Pullen to Carter, ‘Phone discussions with Liz Lloyd’, (20?) October 1998, Carter memorandum, ‘No. 10 Policy Unit views’, 1 June 1998.

[13] TNA MAF 753/5, Craddock to Pullen, 4 February 1999, Blair-Prescott meeting, minutes, 19 January 1999, Carter to Pullen, both 4 February 1999.

[14] TNA MAF 753/5, Meacher to Prescott, 9 February 1999; Meacher and Jones, ‘Access to the countryside: the government’s framework for action’, March 1999.

[15] TNA MAF 753/5, Tindale to Pullen et al., 21 January 1999.

[16] TNA MAF 753/4, Craddock to Tindale, Ratcliffe to Pullen, both 22 October 1998.

[17] TNA MAF 753/9, Pullen to Prescott’s Private Secretary, ‘Countryside Bill – access to other countryside’, 16 December 1999; TNA MAF 753/17, Tierney to Michael, ‘Access to coastal land’, 11 March 2005, Michael to English local authorities etc., ‘Access to open country’, 7 March 2005.

[18] TNA MAF 753/7, Meacher to Morley, ‘Access to open country: compulsory powers of access to other open country’, 26 April 2000, Craddock to Braun and Meacher, 23 March 2000.